Keaney v Northern Ireland Commissioner ... [2011] NIIT 01623

THE INDUSTRIAL TRIBUNALS

CASE REF: 1623/10

CLAIMANT: Francesca Keaney

RESPONDENT: Northern Ireland Commissioner for

Children and Young People

DECISION

The unanimous decision of the tribunal is that the claimant’s claims of unlawful discrimination on the ground of pregnancy and an unlawful deduction from wages are dismissed.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Members: Ms E Kennedy

Mr J Hughes

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Higgins Hollywood Deazley Solicitors.

The respondent was represented by Mr G Daly of Francis Hanna and Company Solicitors.

THE CLAIM

1. The claimant claimed that she had been unlawfully discriminated against on the ground of pregnancy. The respondent denied all such allegations.

THE ISSUES

2. The legal issues, as agreed by the parties, were as follows:-

(1) Was the claimant subjected to direct discrimination and in particular less favourable treatment on the ground of her pregnancy contrary to the Sex Discrimination (Northern Ireland) Order 1976 (“the Order”), and in particular Articles 5 and 8 thereof?

(2) If the answer to (1) is in the affirmative, is the respondent liable for any or all such discrimination?

(3) If the claimant was subjected to discrimination as alleged, what is her injury, loss or damage or other remedy under Article 63 of the Order?

(4) Did the respondent’s decision to reduce the claimant’s salary as acting up Senior Case Worker constitute an unlawful deduction from wages contrary to the Employment Rights (Northern Ireland) Order 1996?

SOURCES OF EVIDENCE

3. The tribunal heard evidence from the claimant and on her behalf from
Catherine Quigley and Ceardha Morgan, both Solicitors. On behalf of the respondent, the tribunal heard evidence from Noreen Marie (Mollie) Simpson, Head of Legal and Casework together with Alex Tennant, Head of Policy and Research, Gerard Campbell, Chief Executive Officer, and Robert Magee, Human Resources Officer. The tribunal also admitted and read a signed statement from
Caitriona McLogan, previously a Finance Officer with the respondent, subject to the weight to be attached to the statement as Caitriona McLogan did not give oral evidence. The tribunal also received bundles of documentation and took into account only the documentation referred to in the course of the hearing. The tribunal was also assisted by an agreed chronology which is appended to this decision.

FINDINGS OF FACT

4. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i) The claimant practised as a Barrister from March 2007 until her employment in September 2008 as a Casework Officer in the respondent’s Legal and Casework Department. The respondent was sponsored by the Office of the First Minister and Deputy First Minister (“OFMDFM”). The tribunal was aware of the issues addressed at previous Case Management Discussions and finds it useful, in order to provide a context for the case, to set out the allegations made by the claimant in her claim form presented to the tribunal on 21 June 2010, as follows:-

“CLAIMANT: FRANCESCA KEANEY

SECTION 7

I commenced employment with the Respondent as a case work officer on or about September 2008 within the Legal and Casework Department.

At the time relevant to this complaint I was pregnant with my first child.

On or about July 2009 I was obliged to assume responsibility for the aforementioned department when the previous Head of Department went on sick leave.

In addition, on or about October 2009 I was appointed to the role of acting up Senior case work officer while still assuming the aforesaid responsibility.

Between October 2009 and February 2010 I was short listed and interviewed for the then vacant position of Head of Department.

On the 2^nd March 2010 Ms Mollie Simpson commenced employment with the Respondent as the new Head of Department.

On the 2^nd April 2010 I applied for the position of permanent Senior Case Work Officer to which I was acting up.

By letter of the 22^nd April 2010 I was informed that my application had been unsuccessful following the short listing process. By further letter of 30^th April 2010 I was informed that my application apparently did not meet essential criterion four of the job description for the post in that my application did not demonstrate “at least one years experience of supervising staff or a team”.

I do not accept that my application did not demonstrate or meet the aforementioned criterion and I would contend that I was improperly excluded from proceeding to interview at the short listing process by reason of my pregnancy and forthcoming maternity leave. I would further contend that I have been treated less favourably than I would have been had I not become pregnant and discriminated against on the grounds of my sex contrary to Article 5 of the Sex Discrimination (Northern Ireland) Order 1976.

I would also submit that I have been subjected to recent conduct and actions of an unacceptable and degrading nature amounting to further sex discrimination namely:

(a) On or about the week commencing 22^nd March I was informed by Mr Robert Magee Human Resources that as no risk assessment of my pregnancy had been or would be carried out I was to no longer attend external meetings as there was a risk that I could fall which would result in a liability to the organisation. I was therefore obliged to seek permission to attend a pre arranged CPD lecture which I was scheduled to deliver. I also had to subsequently seek permission from Ms Simpson in front of the team to attend a meeting at Stormont.

(b) At a meeting during the first week of Ms Simpson’s appointment with me, Ms Simpson commented that it was “inconvenient” to have a pregnant senior case work officer.

(c) In the course of a general discussion involving Ms Simpson and a case work officer Catherine Quigley regarding dieting Ms Simpson passed comment that it seemed everyone was dieting but “guess who is not losing weight …… Francesca” and laughed.

(d) In the course of a meeting during the week of the 12^th April 2010, whilst referring to an update from a recent SMT meeting, Ms Simpson referred to my maternity as being a staffing concern and burden on the budget.

(e) On or about the 20^th to 22^nd April I was requested by Ms Simpson to assist with the completion of a quarterly update of a business plan. In the course of demonstrating the functions of a computer keyboard Ms Simpson commented to me that I must be able to do so because my fingers were so much “fatter” than her own.

(f) At a case review meeting on or about the 26^th April, when I enquired from Ms Simpson about delivery of a laptop which I had been awaiting to work from home I was informed that “she had given up on it”.

(g) Following my appointment to act up as senior case work officer it was agreed and I was assured that I would remain acting up until the post was filled. Despite the fact that no appointment has yet taken place I was informed by letter of 26^th April that my acting up role would come to an end on the 14^th May and I would revert back to my previous staff officer’s scale pay rate with effect from the 15^th May. I consider this to also amount to a breach of contract and unlawful deduction of salary.

(h) On the 5^th May Ms Simpson commented to me that she thought I was going to “pop soon” and head off early but that because there was too much work to be done I could not go early.

(i) On the same date I was informed by Ms Simpson that she was being left in the “lurch” by me going on maternity leave.

(j) On the 7^th May in the course of a team meeting Ms Simpson made reference to the pressure my maternity leave would put on the department, that she was concerned as to how much she was going to have to phone me whilst off and mindful that this would not be ideal with a new baby.

On or about the 13^th May 2010 I raised a grievance with Mr. Campbell the
Chief Executive. The grievance is being dealt with by Ms. Patricia Lewsley Commissioner. As of the date hereof I have not been advised of the outcome of
my grievance. I have found the aforementioned conduct and actions of the Respondent, its servants and agents to be inappropriate, hurtful and discriminatory on the grounds of my sex”.

(ii) At a Case Management Discussion held on 12 October 2010, the claimant’s Counsel clarified that the alleged comments relating to the claimant’s pregnancy made by Mollie Simpson and Robert Magee before the shortlisting process were allegations of individual discriminatory acts. The alleged comments were also relied upon as background evidence under the principles set out in the case of Anya v University of Oxford and Another [2001] IRLR 377CA, in relation to the decision of the shortlisting team which included Mollie Simpson and arrived at the decision not to shortlist the claimant.

(iii) The document entitled “Job description/Person specification” pertaining to the Senior Caseworker post states, inter-alia:-

“KNOWLEDGE, SKILLS AND EXPERIENCE

Candidates must be able to demonstrate that they meet all the following essential criteria in their written application and at interview ……..

4. Have at least one year’s experience supervising staff or a team”;

(iv) In addition, the tribunal was directed to the shortlisting section in the respondent’s Recruitment and Selection Policy, and in particular the following:-

“• Panel Members will independently assess applicants against the Personnel specification prior to the shortlisting meeting, using the ranking scale in Appendix 1. If specific criteria cannot be tested from application forms, these should be omitted from the selection process for all applicants. Reasonable inferences based on the information provided may be made as long as these are consistently applied to all applicants.

• Decisions reached for each applicant must be on the basis of information contained in their application form.

• The HR Officer will ensure that all decisions taken regarding eligibility and shortlisting are clearly documented, and will record all scores using a scoring pro-forma.”

In relation to the last paragraph, Mr Magee pointed out that such a scoring pro-forma was not used in this shortlisting exercise and that the reference to scoring should properly refer to the interview itself. In consequence of the hearing, the respondent has decided to amend this part of the policy.

(v) The criterion at issue in the claimant’s case at the shortlisting meeting held on 21 April 2010 was the requirement to have at least one year’s experience of supervising staff or a team (“criterion 4”). The claimant’s application form for the Senior Casework Officer post contained the following paragraph under criterion 4:-

“Since 2006-2008 as a practising barrister from point of instruction I would supervise a legal team including the professional client – the solicitor – as well as the lay client. This involved managing the case in terms of its direction and identification of actions to be completed. To do so I would provide a number of directions for the solicitor – I would frequently work with partners of solicitors firms directly. Sometimes I would highlight to senior solicitors gaps in their performance where I felt it was damaging a client’s case and recommend actions to rectify gaps. For example in April 2008 I worked on a civil fraud matter and was asked if I would be willing to supervise the trainee in the firm to assist in her development in more serious and complex cases. I undertook this task and successfully lead the trainee to complete a comprehensive piece of work to the satisfaction of the partner in the firm. Since commencing work in NICCY in September 2008 in the absence of the Head of Department I have taken the initiative to supervise the L&C team providing advice and assistance in relation to day to day case problems. Since July 2009 I was the most senior member of the legal team and consequently supervised the AO and temporary staff employed in the team on a day to day basis. In October 2009 I was appointed Acting Senior Casework Officer and took over the management of the AO and recruited another temporary solicitor, increasing to 3 in January 2009. I monitored and evaluated their performance primarily through the case review process (which I developed) with as well as the 1-1 process. Whist carrying out this role I have implemented processes to address difficulties within the team as well as addressing concerns raised about one member of the team. I have worked with the CE with regards to performance management and innovatively developed processes to improve the team’s function. I worked with team members to identify their business objectives”.

(vi) The claimant raised a grievance with the respondent pursuant to the respondent’s decision not to shortlist her for the post. The Commissioner, Patricia Lewsley, replied to the grievance on 7 July 2010 (“the grievance reply”) as follows:-

“Francesca Keaney

Address redacted

7 July 2010

Dear Francesca

I refer to your Grievance as set out in your solicitor’s letter dated the 13^th May 2010. I apologise for the slight delay in responding to you this was due to leave and pressure of work. In any event I hope you and the baby are keeping well.

I intend to respond to each of the points raised by you as they appear in that letter.

You claim that you were obliged to assume responsibility for the Legal and Casework department on or about July 2009 whilst the Head of the Department was on sick leave. This is not correct. You were not obliged to do so. You were not asked to do so. You did not do so.

It is not correct that when you were appointed to the role of Acting Senior Case Worker that you were required to assume responsibility for the Department.

The person responsible for the Department during the absence of the Head of Department was Mr Gerry Campbell, the Chief Executive of NICCY.

It is correct that you were informed that your application for the post of Senior Case Worker was unsuccessful at the short listing stage in that you did not meet an essential criterion namely, “one year’s experience of supervising staff or a team”. You say that you do not accept that your application did not demonstrate or meet the aforesaid criterion but you do not state how it does. It is abundantly clear that given the nature of your employment history you do not have the required time i.e. 1 year. Even if one allows from July 2009 you fall short of the one year as your application for the post was in April 2010. Your experience and time at the Bar prior to commencing work with NICCY was not considered relevant to the criteria, despite your valiant attempt in your application to contend that it was relevant.

You contend that you were improperly excluded from the process by reason of your pregnancy and forthcoming maternity leave. NICCY completely and utterly refutes this contention and your contention that you were discriminated against on the grounds of sex. There was absolutely no connection between your condition and the rejection of your application. If you had not been pregnant your application would have still be rejected for the reasons given.

During your grievance you referred to procedural defects in that one of the short listing panel members had left the short listing to go to another meeting. I have investigated this matter and I am satisfied that despite this, the procedure adopted to deal with the need for Mr Campbell to attend another meeting was fair and reasonable to all candidates and did not result in any detriment to anyone. As a matter of fact your application was considered prior to Mr Campbell’s departure.

You claim that you had been subjected to conduct and actions amounting to sex discrimination. I will deal with these in turn. Having investigated each of your allegations I find as follows;

(a) Mr Magee contends that in a course of a discussion with you regarding your maternity letter you raised the question of risk assessment. Mr Magee explained that there was no need for specific risk assessment but advised you that it would be in your best interests not to attend external events. He maintains he did not instruct you that you couldn’t attend external events. Mr Magee maintains that he gave you this advice not because he was concerned about the liabilities of the organisation but out of genuine concern for you as a pregnant lady, he was merely offering friendly advice as he didn’t want anything to happen to you or your unborn child. He has no recollection of informing you that you needed to seek permission from Mrs Simpson to attend such events but he is not categorically denying that he may have said this or something to that effect. In any event he is adamant that it was not a stipulation that you were to seek permission in front of the team as you suggest.

My investigations reveal that you appeared to be very happy following your discussion with Mr Magee because you informed Mrs Simpson that Robert (Mr Magee) said you shouldn’t attend external meetings, workshops, or events and that you thought this was a good idea as you were doing clinics at nights and this involved driving on country roads.

In any event your complaint seems to be that you were required to seek permission. I have to say that I had difficulty in following exactly what you were saying you had to do in this respect. In our meeting you stated there were 2 occasions. You then appear to have mentioned 3 separate meetings. Firstly you said you had to go to a meeting at Stormont and a meeting with Tony McGleenon. You then referred to a CPD lecture on Mental Health. However in your written grievance you mention only 2 matters i.e. a meeting at Stormont and a CPD lecture you were due to deliver.

Firstly I have to say that I find it strange that you did not mention, when speaking to Mr Magee (on or about the week on the 22 March), the scheduled CPD lecture that you had organised and were scheduled to deliver on the 25 March. My investigations reveal that at no time did you seek permission from Mrs Simpson to attend and present this CPD lecture.

You claim that you had to seek permission from Mrs Simpson in front of the team to attend a meeting a[t] Stormont. In the course of my investigations Mrs Simpson was asked specifically about this and she will say that it is not true that you asked her for permission in front of the team or otherwise. She was unaware that you had a meeting in Stormont until you were about to go out the door and you informed her you couldn’t stop to speak to her as you had to go to Stormont.

For the sake of completeness Mrs Simpson confirms you did not seek permission from her to attend a CPD lecture on Mental Health or a meeting with Tony McGleenon.

In light of the foregoing I do not uphold your grievance in this respect.

(b) Mrs Simpson totally denies your allegation that she commented that it was “inconvenient” to have a pregnant Senior Case Worker. This was allegedly said during a meeting at which Mr Campbell was present and he has no recollection of any such comment being made and therefore I find that I cannot uphold your grievance in this respect.

(c) Mrs Simpson denies this allegation in its entirety. She does recall the conversation re dieting and says that you were the person who made a comment that engendered laughter. She describes how you were recounting that your sister-in-law who was also pregnant at the time said that you and she were the only two women on the planet who were not dieting. I find that I cannot uphold your grievance in this respect.

(d) There was a discussion between you and Mrs Simpson when she was updating you on matters that had been discussed about the budget at a recent Senior Management meeting. She said she explained to you that there was a concern as to whether or not NICCY would be allowed cover for your maternity leave, due to the strain this would put on the budget. This was a statement of fact and was not directed at you. Mrs Simpson denies that there were any adverse remarks made to you about your maternity being a staffing concern and a burden on the budget. In light of this I cannot uphold your grievance in this respect.

(e) This allegation is totally denied. Mrs Simpson is adamant that she made no such remark to you. She says that she was filling in the quarterly update and the column was to be in green but she was having difficulty achieving this. Donna tried to help her and then you came into the office and reached over and did it. Mrs Simpson says she said she had stubby fingers, referring to hers not yours. She said she was just praising you for being able to make the change instantly. In light of this innocent explanation I cannot uphold your grievance in this respect.

(f) Mrs Simpson accepts that what you say is factually correct in that she had tried to secure a lap top for you but without success and had therefore given up on it. I find that there is no basis on which to hold that this matter is in any way tainted by discrimination and accordingly whilst finding that your statement is factually correct, I cannot uphold any implication of improper conduct on the part of Mrs Simpson.

(g) The facts are that you were offered and accepted, a 3 month position, as an Acting Senior Case Worker from the 1^st October 2009. I accept that you continued in this position thereafter until you were informed by way of letter of 26 April 2010 that your appointment would end on 14 May 2010. The decision to continue your acting up role, post December 2009 was made on an informal basis because of the ongoing situation with the Head of Department and the need to appoint a new Head. This was an evolving position and the matter was kept under review. Following the appointment of Mrs Simpson as the new Head it was decided to allow you to continue in your acting up position until she had bedded in. She started in the post on 2 March 2010. At the end of April it was considered that we no longer required you to act up and you were informed that you would be returning to your substantive post. Your allegation that it was agreed and you were assured that you would remain acting up until the post was filled is totally denied. This is not true. It is quiet clear to me from my discussion with you in relation to your grievance that you had assumed this would be the position. You were unclear as to the original duration of the appointment. You stated “October to March can’t remember details”. You said I remember being told March but it might be longer. I find this strange given the fact you signed the written 3 month offer on 6 October 2009. Most strikingly however was the fact that when I asked you if you understood that the post was always temporary, you stated, “Yes but assumed it would continue until someone was appointed”. In the circumstances it is clear that you had no contractual entitlement or any reasonable expectation to continue in that acting up post until someone was appointed. I cannot therefore uphold your grievance in this respect.

(h) Mrs Simpson has explained that the discussion about going early took place in the course of a team meeting where all people present including you were joking about you being her “source of knowledge” as she had only recently started. The remarks made were made by all concerned in a jocular fashion. She admits that she may have said to you something to the effect that can’t go early or she would have to phone you to the labour ward to which you responded, “I will be as high as a kite” and all of you were laughing. In light of this innocent explanation I find that this was an exchange that was not tainted by discrimination and therefore I cannot uphold your grievance in this respect.

(i) Mrs Simpson denies that she made any comment to you about you leaving her in the lurch.

(j) She absolutely denies saying that your maternity leave would put the department under pressure or that she would have to phone you whilst you were off even though it wouldn’t be ideal with a new baby.

As a matter of record you did not complain about any of these individual alleged incidents as and when they occurred either to Mr Campbell, the Chief Executive or me. The matter first came to my attention when I received your grievance via your solicitors. I have to say I would have expected someone with your training to have raised the matters informally as they allegedly happened in accordance with our grievance procedure.

In conclusion I do not uphold your grievance and I am satisfied that you have not been treated inappropriately whether by way of Sex Discrimination or at all.

Under our procedure you have a right of appeal against my decision I attach herewith the policy that sets out the procedure for appealing. However as Mr Magee the HR Officer is on annual leave please sent[d] your appeal letter directly to me marked Private and Confidential.

As requested, please find enclosed a copy of your interview notes.

Yours sincerely

Patricia Lewsley

Commissioner

Enc”

(vii) It was common case that the claimant had the relevant experience required by criterion 4 from October 2009 until the date of shortlisting for the post of Senior Case Officer on 21 April 2010. The disputed periods were as follows:-

(1) The period prior to September 2008 when the claimant practised as a Barrister;

(2) The period from September 2008 until July 2009;

(3) The period from July 2009 up until the claimant was appointed Acting Senior Casework Officer in October 2009. During this period the Head of the Legal Department, Miss Ryan was on sick leave and subsequently left the respondent’s employment. In June 2009 a Caseworker, Miss Kerr had left the respondent’s employment. Due to lack of cover for week commencing 12 August 2009, Robert Magee, together with the claimant interviewed a number of applicants and Ceardha Morgan commenced as a temporary case worker on 12 August 2009 under the auspices of an employment agency. Subsequent to the claimant being interviewed in September 2009 for the acting up post as Senior Casework Officer (which required a legal qualification), Catherine Quigley commenced employment as a temporary case worker in October 2009, again under the auspices of an employment agency, following an interview with the claimant and Robert Magee. There was another temporary case worker, Miss McCullough, who, following contact by OFMDFM with the respondent, ceased her employment before the beginning of April 2010. This was shortly after Mollie Simpson commenced as Head of Legal and Casework in March 2010.

(viii) The tribunal is satisfied that the post of Senior Caseworker was already within the structure of the respondent’s organisation and that funding was available for the post. The claimant carried out supervisory activities in the acting up role during a period when efforts were being made to recruit a new Head of the Legal Department. This post did not specify a requirement that applicants must have supervisory experience but focussed on management responsibilities. Previously the Senior Casework Officer post required applicants to have one year’s management experience but this was reduced to a requirement for at least one year’s experience of supervising staff or a team. It was common case that “supervision” was not defined in any documentation. Although the claimant made arguments regarding supervising the Administrative Officer and temporary staff employed in the team in the period from July 2009 until she commenced her acting up role, the tribunal is not satisfied, on the evidence, that this is what was envisaged by criterion 4. The tribunal is further satisfied in respect of the period from September 2008 until October 2009, that there is no evidence that the claimant’s contract and job description required her to supervise staff or a team and that she was never specifically requested to or required to perform such a role nor in fact did she do so.

(ix) In the period from July 2009 until October 2009, Gerard Campbell, as Chief Executive Officer, was responsible for the supervision of the relevant staff in the absence of Miss Ryan and, when he went on leave during his period, Maureen Kingham, Head of Communications, supervised the relevant staff. The claimant had applied for the post of Head of Legal and Casework also during her pregnancy and although not formally notified of the fact in writing, the tribunal is satisfied that the Chief Executive, Gerard Campbell, informed her that she was the reserve candidate.

(x) The tribunal had no doubt that the claimant was competent and diligent in her work. However, other colleagues had difficulty in reading her handwritten case notes and Mollie Simpson was concerned to deal with the substantial backlog of cases, in respect of which her handwritten notes had to be typed up. This situation was however brought under control before the claimant commenced maternity leave. Mollie Simpson had endeavoured to obtain a laptop for the claimant to assist in this process but was frustrated in her unsuccessful attempts to do so and at one point expressed to the claimant that she had to give up trying. A laptop was however eventually obtained for the claimant, and she was afforded time to complete typing up her notes before commencing maternity leave.

(xi) Following the commencement of her employment in March 2010, Mollie Simpson became concerned as to whether OFMDFM would allow cover for the claimant during her absence on maternity leave which commenced in early June 2010, following a period of sickness from 31 May 2010. The claimant was notified by correspondence dated 26 April 2010 that the Acting Senior Casework Officer position was ending on 14 May 2010 as Mollie Simpson no longer required her to act up. The claimant had initially been appointed for a period of three months in this acting up role and continued thereafter on a month-to-month basis and the tribunal is not satisfied, on the evidence, that the claimant was given an assurance that the acting up position would remain until the substantive post had been filled. Catherine Quigley’s employment ended on 7 May 2010 and Ceardha Morgan’s contract ended soon afterwards. Another agency member of staff, Eimer Kane commenced work as a temporary caseworker in early June 2010, shortly after Ceardha Morgan left. Eimer Kane was not allowed by OFMDFM to be employed otherwise than on a month-to-month basis. Shortly before Eimer Kane commenced, the Administrative Officer, Miss Semple, also left the respondent’s employment, to be replaced by Aileen Laverty. The tribunal accepts that this was a period of considerable flux for the respondent and that it was in this context that Mollie Simpson became concerned that OFMDFM would not provide the necessary cover for the claimant’s maternity leave. The new Senior Casework Officer commenced employment on or about 7 July 2010.

(xii) The tribunal is satisfied that there was confusion regarding the respondent’s budget and in particular the amount to be carried over for the year subsequent to March 2010. However, the tribunal is satisfied that such considerations were not material to the recruitment of a Senior Casework Officer and that Mollie Simpson, who found herself together with the claimant and the Administrative Officer, Miss Semple, as the only permanent staff prior to the claimant’s maternity leave, was primarily concerned with the provision of cover during the claimant’s maternity leave and whether or not the respondent would be allowed such cover for the claimant’s maternity leave due to the strain this would put on the budget. The tribunal is satisfied, however, that Mollie Simpson did use the word ‘burden’ as well as ‘strain’ in the same context, at a meeting held on 12 April 2010.

(xiii) The shortlisting meeting on 21 April 2010 for the post of Senior Caseworker was attended by Robert Magee, (whose wife is a qualified Barrister), Mollie Simpson, (who had practised as a Barrister for several years), Megan Gilbert, the youth member of the panel, Alex Tennant and Gerard Campbell, Chief Executive Officer. Notwithstanding the provision in the Recruitment and Selection Policy which states that the Chairperson of such a panel will normally be the most senior ranking member of staff among the panel members (ie, Gerard Campbell as Chief Executive Officer) the tribunal finds that it was appropriate and in accordance with established practice, for the Head of the relevant Department to act as Chairperson – in this case, Mollie Simpson.

(xiv) During the panel discussion in relation to whether or not the claimant met criterion 4, Alex Tennant highlighted the fact that the Head of legal post did not require supervision experience, whereas the post of Senior Casework Officer had such a requirement. She also suggested that the panel should consider accepting the claimant’s assertions in relation to criterion 4 at their face value and that any further issues arising could be probed further at interview. Robert Magee left the room to obtain the Head of Legal and Casework recruitment file in order to ascertain whether the claimant had been a reserve candidate for that post and had been notified in writing and if the criteria for the Head of Legal and Casework required management or supervision experience. It transpired that a regret letter had been forwarded to the claimant following the interview for the Head of Legal and Casework post. It was accepted by the respondent during the hearing, (as found earlier in this decision), that Gerard Campbell had informed the claimant that she was the reserve candidate for the Head of Legal and Casework post. The tribunal is also satisfied that Mollie Simpson and Robert Magee had clear views regarding the claimant’s assertion that she had acquired the relevant supervision experience during her time in practice as Junior Counsel. Gerard Campbell had an understanding of the claimant’s role in the organisation since the commencement of her employment, and, following discussion in relation to her claim that she had relevant supervision experience within the respondent’s organisation from September 2008 until October 2009, the shortlisting panel decided, at Gerard Campbell’s suggestion, to obtain a legal opinion regarding the Junior Counsel aspect of the claimant’s application form together with the aspect dealing with whether the interviewing panel could take into account their own knowledge of an applicant’s experience in deciding whether or not to shortlist that applicant.

(xv) The tribunal is satisfied that at the conclusion of the panel discussion the panel decided not to shortlist the claimant unless legal advice indicated that they were wrong in doing so. Furthermore, at the end of the consideration of the claimant’s application form, Gerard Campbell left the room at around 10.40 am-10.45 am to attend a meeting with a Junior Minister at Stormont on behalf of the Commissioner. Upon returning to his office in the early afternoon, the Chief Executive Officer, in the presence of Robert Magee and Mollie Simpson, finalised shortlisting of other candidates on an individual basis, ie without discussion with the other two panel members. By this stage Robert Magee, who had consulted with the respondent’s Solicitors at
8.30 am on 22 April 2010, had conveyed the nature of the legal advice obtained to Alex Tennant and Mollie Simpson outside Alex Tennant’s office, to Gerard Campbell individually in his office, and to the other panel members individually.

(xvi) The tribunal carefully considered the evidence of the respondent’s witnesses when referred to the respondent’s Solicitors replies (‘the Replies’) to the claimant’s Notice for Additional Information which state as follows:-

“2. – 7. The issue of what legal advice was or was not obtained is a matter of legal privilege but the Respondent is prepared to waive same to the following extent. The Respondent will say that there was no question of changing or redefining the short listing criteria as a result of any legal advice. At the short listing meeting there was discussion as to whether the Claimant met the criteria. The Claimant had claimed that she had “supervised” during her time at the Bar as Junior Counsel. One member of the panel who had been a practising Barrister herself did not consider Junior Counsel’s role to be a supervisory one. The HR Officer, whose wife had been a practising Barrister, stated that this was also his understanding.

The individual panel members were not convinced that the Claimant had met criterion 4. It was then suggested that the panel should accept what she had said on her application without questioning it, thereby accepting she did meet essential criterion 4. It was agreed by all members of the panel that a legal opinion should be sought. As result of the advice obtained Mr Magee reported to the panel that the solicitor’s view was also that the role of Junior Counsel was not a supervisory one and the panel could not just accept the Claimant’s assertions without question, if they were in doubt but that it was a matter of assessment for the panel to decide if the Claimant met this particular criterion. In the end the panel concluded that she didn’t meet the criterion and couldn’t be shortlisted.”

(xvii) The tribunal having also carefully considered the totality of the evidence, including all documentary evidence placed before it in relation to the claimant’s allegations, (including what she claimed were contemporaneous notes of various episodes), is satisfied that the claimant has a tendency to exaggerate. Firstly, in relation to the shortlisting exercise for the Senior Caseworker’s post, the claimant exaggerated the role of Junior Counsel prior to September 2008, and from September 2008 until October 2009, she sought to presume an element of supervision within the definition of criterion 4 which had neither been delegated nor assigned to her by anyone within the respondent’s organisation nor recognised in any documentation placed before the tribunal. The tribunal is also satisfied that the allegedly contemporaneous notes were not in fact contemporaneous and were prepared for the purposes of obtaining legal advice. The tribunal appreciates however, that the claimant was understandably ambitious to achieve a higher grade with the respondent, having already been placed as a reserve candidate for the Head of Legal and Casework post.

(xviii) The respondent did not adhere strictly to the requirements of its own Selection and Recruitment procedure in relation to shortlisting, as the use of personal knowledge is implicitly impermissible under that procedure. However, given the claimant’s exaggerations in her application form pertaining to the period prior to October 2009, combined with the fact that the Chairperson had practiced as a Barrister, that the Human Resources Officer, Robert Magee, had an awareness of a Barrister’s role due to his wife being a qualified Barrister, and the knowledge which certain members of the panel had of the claimant’s employment with the respondent, it is not surprising that questions were raised in relation to the accuracy of some of the assertions made in her application form pertaining to criterion 4. Moreover, given the obvious dilemma faced by the shortlisting panel during their discussion of the claimant’s application form at shortlisting, and the views expressed during that discussion, the tribunal finds that it was a prudent step for the panel to obtain legal advice in the circumstances on the two issues referred to previously, and to rely on that advice to confirm their decision not to shortlist the claimant. There was insufficient evidence before the tribunal for it to find either that criterion 4 had been inserted to prevent the claimant from obtaining the job of Senior Caseworker or that there was an attempt by or on behalf of the respondent or an ulterior motive in operation to prevent her from being shortlisted.

(xix) The tribunal took into account the fact of the claimant’s pregnancy throughout the relevant period and carefully considered all of the evidence both oral and documentary (including the claimant’s evidence on injury to feelings) in relation to each alleged episode. With regard to the allegations referred to at (a) to (j) of the claimant’s claim form, as supplemented by further evidence during the hearing, the tribunal, (except in relation to Mollie Simpson’s use of the word ‘burden’ in the context as found by the tribunal), prefers the respondent’s evidence which is consistent with the grievance reply and the replies referred to at sub-paragraphs (vi) and (xvi) above. The tribunal has also taken into account the fact that the claimant did not request Mollie Simpson to stop making the alleged remarks nor is there evidence that she reported them to Mr Magee, Mr Campbell, the Chief Executive, or the Commissioner before the grievance was lodged by her Solicitor on 13 May 2010, some time after the short listing exercise.

THE LAW

7. (1) Article 5A of the Order as amended by the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008 provides as follows;-

“(1) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if -

(a) at a time in a protected period, and on the ground of the women’s pregnancy, the person treats her less favourably”.

(2) The tribunal was mindful that the amendment to Article 5A of the Order does not require a comparator and the inclusion of that term in the authorities referred to subsequently is for completeness only. The tribunal also considered Article 8 of the Order.

BURDEN OF PROOF REGULATIONS

8. Article 63A of the Order states:-

“(2) Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that respondent –

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act”.

(i) In Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong, Chamberlains Solicitors and Another v Emokpae; and Brunel University v Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination. This guidance is now set out at Annex to the judgment in the Igen case. The guidance is not reproduced but has been taken fully into account.

(ii) The tribunal also considered the following authorities, McDonagh and Others v Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy v Nomura International Plc [2007] IRLR 246 (“Madarassy”), Laing v Manchester City Council [2006] IRLR 748 and Mohmed v West Coast Trains Ltd [2006] UK EAT 0682053008. It is clear from these authorities that in deciding whether a claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer’s explanation for the treatment. As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-

“The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

“Could conclude” in s.63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage…, the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.”

(iii) The Tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington v Ladele and Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41. These paragraphs as set out in full to give the full context of this part of his judgement, even though Article 5A of the Order no longer requires comparators in a case involving pregnancy.

“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist tribunals in determining whether direct discrimination has occurred. The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

(1) In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’. He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

(2) If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37.

(3) As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination:-

‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’

If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the tribunal must find that there is discrimination. (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great Britain-China Centre [1991] IRLR 513.)

(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1997] IRLR 229:-

‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’

Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

(5) It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] IRLR 259 paragraphs 28-39. The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

(6) It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 esp paragraph 10.”

(iv) The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24. Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.

(v) The tribunal also considered the authorities referred to in the skeleton arguments by way of submissions annexed to this decision and Harvey on Industrial Relations and Employment Law at J134ff.

SUBMISSIONS

9. The tribunal carefully considered the written and oral submissions from both parties’ representatives. A further hearing became necessary on 23 June 2011 to deal with additional written submissions from the respondent’s representative. Copies of the written submissions are appended to this decision.

CONCLUSIONS

10. The tribunal, having carefully considered the evidence together with the submissions and applied the principles of law to the findings of fact, concludes as follows:-

(i) The tribunal has already arrived at findings of fact in relation to the alleged comments and on other matters raised by the claimant apart from the short listing exercise. The tribunal does not therefore consider it necessary to address these matters further in its conclusions, as it is satisfied that the claimant has not proved facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the respondent has committed an unlawful act of discrimination in treating the claimant less favourably on the ground of her pregnancy.

(ii) In relation to the remainder of the case, the tribunal is also satisfied that the claimant has not proved facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination in treating the claimant less favourably on the ground of her pregnancy. After carefully weighing the evidence and, given the findings of fact, the tribunal is satisfied that the reason for the claimant not being short listed was due to the manner in which she completed her application form for the post in question under Criterion 4. This led to a panel discussion and eventual agreement by the panel members to seek professional legal advice as a result of which the panel had no reason to change its original decision not to short list the claimant. Accordingly, the burden of proof does not shift to the respondent.

(iii) The tribunal is also satisfied that the claimant has not established a case for an unlawful deduction from wages.

(iv) The claimant’s claims are therefore dismissed in their entirety.

Chairman:

Date and place of hearing: 11-14 and 18-19 April 2011 and

23 June 2011, Belfast.

Date decision recorded in register and issued to parties:

IN THE OFFICE OF THE INDUSTRIAL TRIBUNALS AND THE FAIR
EMPLOYMENT TRIBUNAL

Francesca Keaney v Northern Ireland Commissioner for Children and Young People

CHRONOLOGY

2008

September Claimant employed as a Casework Officer

2009

October Claimant appointed Acting Senior Casework Officer

September—
February 2010 Recruitment process for Head of Legal and Casework

2010

February Appointment of Mollie Simpson as Head of Legal and Casework

March Mollie Simpson commences her employment

March Claimant involved in budgetary discussions with Mollie Simpson and Gerry Campbell

March Claimant and Robert Magee hold discussion in relation to her pregnancy

March-May Alleged comments primarily by Mollie Simpson

1*April Gerry Campbell budget calculations (6a)

2 April Closing date for applications to position of Senior Casework Officer

12 April Senior Management Team meeting (6b)

21 April Shortlisting for Senior Casework Officer position

22 April Claimant notified that she was unsuccessful in her application for Senior Casework Officer

26 April Claimant notified that Acting Senior Casework Officer position ending on 14 May 2010

28 April Claimant appeals against the shortlisting decision

30 April Response to appeal letter from Mr Magee

13 May Grievance lodged by Claimant’s solicitors

May to July Grievance investigation

21 June Originating application lodged with the Office of Industrial Tribunals and the Fair Employment Tribunal

7 July Grievance decision

21 July Notice of appearance lodged with the Office of Industrial Tribunals and the Pair Employment Tribunal

IN THE OFFICE OF THE INDUSTRIAL TRIBUNALS AND THE FAIR EMPLOYMENT TRIBUNAL

Francesca Keaney v Northern Ireland Commissioner for Children and Young People

SUBMISSION ON BEHALF OF THE CLAIMANT

1. This is primarily a pregnancy discrimination claim which falls into inter-related parts and there is also a further claim for unlawful deduction of wages:

a. the Claimant alleges that she was not shortlisted for interview for the position of Senior Casework Officer in April 2010 because she was pregnant and was short to commence her maternity leave (this aspect of the claim is referenced ‘failure to shortlist’);

b. the Claimant alleges that she was subjected to pregnancy-related discrimination in the form of detrimental treatment including hurtful comments and the imposition of an inappropriate requirement to obtain permission to attend external events because of her pregnancy; (this aspect of the claim is referenced ‘detrimental treatment’);

c. there is also an unlawful deduction of wages claim - premature termination of her acting up position contrary to understanding and agreement.

2. The background can be summarised briefly:

a. The Claimant commenced practise as a barrister in 2006;

b. She obtained a position as Casework Officer with the Respondent in September 2008;

c. The Head of Casework, Ethne Ryan, went on sickleave in July 2009, Gerry Campbell formally taking responsibility for the Department;

d. She was appointed Acting Senior Casework Officer in October 2009;

e. She was reserve candidate for the position of Head of Casework, Mollie Simpson appointed to that position in February 2010;

f. Mollie Simpson started work on the 2 March 2010;

g. The position of Senior Casework Officer was advertised in March
2010;

h. The Claimant applied for the position;

i. The short-listing took place on the 21 April 2010 and the Claimant was not shortlisted;

j. The Acting up position was terminated by letter dated 26^th April on the 14 May;

k. The Claimant went on maternity leave at the end of May 2010 and returned to work this month, May 2011:

3. By letter dated 13 May 2010 the Claimant lodged a grievance with her employer alleging pregnancy discrimination. The grievance was subsequently largely replicated in the tribunal claim which was lodged in June 2010.

4. An investigation into the grievance was undertaken by Patricia Lewsley Commissioner of the Respondent organisation and interviews held with the Claimant, Gerry Campbell (Chief Executive), Robert Magee (Human Resources) and Mollie Simpson (Head of Casework). No interview was held with Alex Tennant, Head of Policy and Research and a member of the short- listing panel. No explanation has yet been provided for this omission. A further significant omission in the investigation was the failure to interview Ceardh Morgan or Catherine Quigley. It is also notable that the investigation failed to reach findings on two of the allegations nor refute same. (See paragraphs (i) and (j) of decision letter 7^th July 2010).

5. A decision issued on 7 July 2010 from the Commissioner Patricia Lewsley essentially finding that the Claimant had not been subjected to discrimination or inappropriate treatment.

6. As already indicated a claim was lodged in the Office of the Industrial Tribunal and the Fair Employment Tribunal in June 2010. The proceedings were managed at a number of case management hearings and the case heard in April 2011 between the 11^th and 19^th for 5 ¹/₂ days. Provision has been made for oral submissions on the 25 May 2011.

7. These written submissions fall into two main parts:

a. Legal submission;

b. Evidential submission.

THE RELEVANT LAW

8. European Law provides protection against discrimination on the grounds of pregnancy: Directives 92/85, 2000/78 and 2006/64. The European Court of Justice ruled in 1990 that since employment can only be refused to women because of pregnancy, such a refusal constitutes direct discrimination on the grounds of sex.( Dekker [1991] IRLR 27)

9. Domestic legislation has been amended to protect pregnant women in the workplace. Article 5A of the Sex Discrimination (NI) Order 1976 provides as follows:

5A—(l) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if—
(a) at a time in a protected period, and on the ground of the woman’s pregnancy, the person treats her less favourably; or
(b) on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably

In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if, on the ground that Article 1040) of the Employment Rights (Northern Ireland) Order 1996 (compulsory maternity leave) has to be complied with in respect of the woman, he treats her less favourably

For the purposes of paragraph (1)—
(a)in relation to a woman a protected period begins each time
she becomes pregnant, and the protected period associated with any particular pregnancy of hers ends in accordance with the
following rules—

(i)if she is entitled to ordinary but not additional maternity
leave in connection with the pregnancy, the protected period ends at the end of her period of ordinary maternity leave connected with the pregnancy or, if earlier, when she returns to work after the end of her pregnancy;

(ii)if she is entitled to ordinary and additional maternity leave in connection with the pregnancy, the protected period ends at the end of her period of additional maternity leave connected with the pregnancy or, if earlier, when she returns to work after the end of her pregnancy;

(iii)if she is not entitled to ordinary maternity leave in respect of the pregnancy, the protected period ends at the end of the 2 weeks beginning with the end of the pregnancy;

(b)where a person’s treatment of a woman is on grounds of illness suffered by the woman as a consequence of a pregnancy of hers, that treatment is to be taken to be on the ground of the pregnancy;

(c)a “statutory right to maternity leave” means a right conferred by
Article 103(1) or 105(1) of the Employment Rights (Northern Ireland)
Order 1996 (ordinary and additional maternity leave).

In paragraph 3 “ordinary maternity leave” and “additional maternity leave” shall be construed in accordance with Articles 103 and 105 of the Employment Rights (Northern Ireland) Order 1996.
Paragraphs (1) and (2) apply to—
(a)any provision of Part III, and
(b)any provision of Part IV, so far as it applies to vocational training.
10. Pregnancy discrimination, as with other most other forms of discrimination, requires treatment that is both ‘less favourable’ and detrimental / disadvantageous. The precise legal meanings of these terms is explored in some more detail below.

11. Harvey on Industrial Relations and Employment Law considers less favourable treatment in Part L and paragraphs 235-238

(b) Less Favourable Treatment
(i) Generally
[235]

To be treated less favourably necessarily implies some element of comparison: the complainant must have been treated differently to a comparator or comparators, be they actual or hypothetical. The issues arising in respect of comparators are considered below at [246]— [269]. More than that, however, the complainant must have been treated less favourably than that comparator; but what level of difference of treatment amounts to less favourable treatment?
[236]
An early decision of the Court of Appeal suggests that trivial differences in treatment may be disregarded on the principle that de
minimis non curat lex (Peake v Automotive Products
Ltd [1978] QB 233, [1977] IRLR 365, [1977] ICR 968, CA, as explained in Ministry of Defence v Jeremiah 1979]3 A1l ER 833, [1979] IRLR 436, [1980] ICR 13, CA). That analysis is not
at all in accord with the approach taken in more recent cases, but the decision has never been formally overruled.
[237]
Who, however, is the judge of what constitutes less favourable treatment? It will not simply be enough for a complainant to say that they see a particular treatment as disadvantageous. Whether it is capable of amounting to ‘less favourable treatment is a question for the tribunal to decide:
‘Burrett v West Birmingham Health Authority[1 994]
IRLR 7, EAT: A nurse objected to having to wear a cap at work because she found it demeaning. Held (a) the tribunal was entitled to find this was not less favourable treatment within the meaning of SDA 1975s l(l)(a), since male nurses also had to wear uniform, albeit not a cap; (b) the fact that she thought she was being less favourably treated did not mean that she was within the section.’
[238]
On the other hand, the case-law suggests that the test for determining what constitutes less favourable treatment should not be too onerous and should not disregard the perception of the complainant:

‘R v Birmingham City Council ex parte Equal Opportunities Commission[1989] AC 1155, [1989] IRLR 173, HL: In a judicial review brought by the EOC under the education provisions of the SDA 1975, it was claimed that Birmingham City Council treated boys more favourably than girls by providing more places in selective schools for them; the girls thereby suffered less favourable treatment. Their Lordships agreed: it was not necessary to show that selective education was ‘better’ than non-selective education to make good the point. It was sufficient that, by denying the girls the same opportunity as the boys, the Council was depriving them of a choice which was valued by them (or, at least, by their parents) and which (although others may take a different view) was a choice obviously valued, on reasonable grounds, by many others.

Home Office v Saunders[2006] ICR 318, EAT: A female prison officer, working at a male prison, was required to carry out rub-down searches on male prisoners but refused on the ground that she found this distasteful and degrading. After being transferred to another prison, she complained of sex discrimination on the basis that this was less favourable treatment as compared to male prison officers, who were not required to carry out rub-down searches on female inmates as it was felt that female prisoners could object on grounds of privacy and decency if required to be so searched by a man. The employment tribunal and EAT agreed: whether or not this amounted to less favourable treatment was entirely a question of fact, Mrs Saunders had given evidence as to why it was less favourable from her point of view and this was supported by statements from other female prison officers. The prison service had not challenged the evidence in any meaningful way and therefore could not complain of the tribunal’s finding on the evidence before it.

The issue, then, is one of less favourable, not merely different, treatment. In Burrett, the treatment of male and female nurses was broadly comparable, albeit different. There is no requirement to treat all employees identically, Schmidt v Austicks Bookshops Ltd [1978] ICR 85, EAT. To succeed, a complainant must go further and adduce evidence that demonstrates that the difference in treatment is indeed less favourable.

12. Proving pregnancy discrimination is somewhat nuanced as the normal comparison with an actual or hypothetical comparator is not necessary. Pregnancy discrimination is considered in Harvey on Industrial Relations and Employment Law at paragraphs 264-269 — particularly paragraph 269:

(d) Pregnancy and maternity
£264]
As from 1 October 2005, pregnancy and maternity leave was made the subject of specific provision within the Sex Discrimination Act 1975. by amendments introduced by the Employment Equality (Sex Discrimination) Regulations 2005 (51 2005/2467) (and, since, further amended by the Sex Discrimination Act 1975 (Amendment) Regulations 2008 (SI_2008/656))—see SDA 1975 s 3A at Q[15.01], which expressly allowed that pregnancy or maternity leave discrimination no longer required a comparator (a position reached in the case-law back in the early 1990s, with Webb v EMO Air cargo (UK) Ltd /1993 IRLR 27, [1993] ICR 175, HL). Now see the Equality Act 2010s 18. When there is an allegation of discrimination on a pregnancy-related ground, what is important is the existence of a causal connection between the treatment and the pregnancy (put simply, why was the complainant treated less
favourably?, see Johal v Commission for Equality and Human Rights UKEAT/0541/09/DA). There is no need to ask

how a man would have been treated had he been sick or absent from work on some other ground (Fletcher v Blackpool, Fylde & Wyre Hospitals NHS Trust [2005] ICR 1458, EAT). The
approach derives from the fundamental principle of European equality law that, just as like cases must be treated alike, unlike cases must be treated differently; or, as it was put by the ECJ in the context of a maternity leave case, CNAVTS v Thibault Case C- 136/95 [1999] ICR 160: ‘different treatment is allowed or imposed, in favour of and to protect female workers, in order to arrive at material and not formal equality, since that would constitute a denial of equality’.
[265]
It is, however, less clear that there is a prohibition in all circumstances on comparisons between the treatment accorded to pregnant women and to sick men when the woman is suffering from a pregnancy-related illness which incapacitates her from working. Discrimination against a woman who is pregnant because of illness (or consequences of illness, such as absence from work) that is pregnancy-related is in principle unlawful discrimination. But there is some support to be found in the European case that established the fundamental principle (Brown v Rentokil Ltd C-394796 [1998] IRLR 445, ICR 790, ECJ) for the qualification that if a pregnant woman is dismissed because of incapacity arising from an illness that is pregnancy-related, but arose only after the end of her maternity leave, the employer may be able to rebut an allegation of discrimination by showing that an incapacitated man would have been treated in the same way.
[266]
It is however controversial whether that accurately states the position under national law. In Caledonia Bureau Investment and Property v Caffrey [1998]IRLR 110, [1998] ICR 603, EAT a more generous interpretation was given by the EAT in Scotland (Lord Johnston presiding) to the scope of the SDA 1975. A woman dismissed by reason of her post-natal depression (an illness which had made it impossible for her to return to work after pregnancy leave) was found to have been both unfairly dismissed by reason of the ERA l996s 99(l)(a) (pregnancy-related dismissals) and, also, the victim of unlawful sex discrimination:

“13. For present purposes, we are prepared to affirm that, in terms of the sex discrimination legislation, when a woman is dismissed by reason of an illness which is related to having given birth, or being pregnant, or both, which illness arises or emerges during the course of the maternity leave period albeit the dismissal takes place after the expiry of that period, it is still a discriminatory dismissal against a female, upon the basis that at the time of dismissal she suffered from an illness from which a man could not suffer, and thus she is being treated differently from her male counterparts. That is a classic definition of discrimination and, accordingly, the

finding that the [employment] tribunal has made will be upheld, albeit for these rather more elaborate reasons. This approach seems to us to be entirely in accordance with the general aims of protection being given to female employees consistent with their right to bear children.”

[267]
The requirement that the absence-causing illness must have arisen during the period of maternity leave would appear to be derived from
the ECYs ruling in Handels-og Kontorfunktionaernes Forbund i Danmark (acting for Hertz) v Dansk Arbejdsgiverforening (acting for Aldi Marked K/S):
179/88 [199!]IRLR 31, [1992] ICR 332, ECJ. But Lord Johnston distinguished this case on the ground that, in Caffrey, the illness had arisen during the currency of the leave period.
[268]
Still further complications may arise when the absence caused by a pregnancy-related illness precedes rather than follows the taking of
leave. An ECJ decision (Handels-og Kontorfunktionaerrnes Forbund i Danmark, Acting on Behalf of Høj Pedersen v Faellesforeningen for Danmàrks Brugsforeninger C-66/96
[1999] IRLR 55 ECJ) has held that it is a breach of Community law for a woman who is absent from work before the beginning of her maternity leave for a pregnancy-related reason not to receive full pay when, under the relevant national legislation, an employee absent on grounds of illness would receive full pay. Moreover, in Mayr v Backerei und Konditorei Gerhard Flockner OHG C-506/06 [2008] IRLR 387, the ECJ ruled that the dismissal of an employee who took time off work to undergo IVF treatment (albeit at a stage before the embryos had been implanted within her) was an act of sex discrimination, contrary to the Equal Treatment Directive (2006/54/EC). The reasoning of the Court suggests that discrimination on the grounds of potential pregnancy should be regarded as sex discrimination. Although, in this regard, note the more limited view taken of the ECJs decision in Mayr, by the EAT in Sahota v Home Office and Pipkin [2009]
UKEAT/0342/09/LA, [2010] ICR 772, in which it was held that a complaint of direct sex discrimination by reason of IVF treatment would only arise in the interval between the removal of one or more ova from the complainant’s ovaries and an imminent first implantation attempt of fertilised ova (the particular facts of Mayr); there was no wider period of protection for the employee unless and until the fertilised ova were in her uterus, at which stage she would have protection on the grounds of her pregnancy.
[269]
Respondents may use SDA 1975 s5(3) (Equality Act 2Ol0s 23(1) to support an argument that, however regrettable their treatment of the claimant may have been, there is no discrimination on grounds of sex because a male/female whose circumstances were the same would have been treated just as badly. Indeed, this is an approach that

might derive some support from pronouncements in cases such as Madarassy v Nomura International plc [2007] IRLR 246, [2007] ICR 867 CA. and in Blundell v Governing Body of St Andrews Catholic Primary School and another [2007] IRLR 652, EAT, to the effect that it can be relevant to consider how the hypothetical male employee in comparable circumstances might have been treated (at least, in cases of less favourable treatment short of dismissal).
That argument, however, has its limits. In the first place, where conduct is sex-specific (eg pregnancy). no comparator is required. And, in any event, s 5(3) may not be used to allow a tribunal to have regard for comparison purposes to the motive behind the act of the alleged discriminator, for that outcome would be irreconcilable with
the authority of James v Eastleigh Borough Council [1990] IRLR 288, [1990] ICR 554, HL. Moreover, the fundamental difficulty with this approach from a public policy point of view is that it is rare for an employment tribunal to find that an employer has treated a woman less favourably simply due to her pregnancy per se. The less favourable treatment will generally relate to the consequences of that condition; most typically, the time off work that will be required. To ask how men might be treated in (hypothetically) similar circumstances does little to protect pregnant women in the workplace.
Ultimately, the critical question is whether the complainant was treated less favourably because of her pregnancy or maternity (see
Johal v Commission for Equality and Human Rights
UKEAT/0541/09/DA): was her pregnancy an ‘effective cause’ of the treatment complained of (O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School and anor [1997] ICR 33, EAT)? In this respect. an employer’s failure to prevent rumours and gossip relating to an employee’s pregnancy and the paternity of her baby could amount to pregnancy-related discrimination, see Nixon v (1) Ross Coates Solicitors and (2) Coates UKEAT/0108/10/ZT.

13. For completeness ‘detriment’ is statutorily defined in Article 8:

(1) It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a woman— (a)in the arrangements he makes for the purpose of determining who should be offered that employment, or

(b) in the terms on which he offers her that employment, or

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her—

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any other detriment.

14. Detriment is something objectively disadvantageous and which is not trivial.(See above.) A detriment exists if a reasonable worker would take the view that the impugned treatment was to her detriment: (St Helens Metropolitan Borough Council v Derbyshire [20071 IRLR 841) An unjustified sense of grievance cannot amount to a detriment.(Shamoon v Chief Constable of the RUC [2003] 2 AER 26)

15. The case of O’Neill v Governors of St Thomas More RCVA Upper School [1997] 1CR 33 & [1996] 1RLR 372 remains one of the leading authorities in this area — authority for inter alia the proposition that determining whether the impugned decision was unlawful should involve an objective test of causal connection involving consideration of the surrounding circumstances.

16. O’Neill is also authority for the proposition that less favourable treatment on the grounds of pregnancy can be established where the ‘pregnancy’ factor is not the only or even the main cause of the result complained of. Where pregnancy is a factor without which the less favourable treatment would not have happened this should be enough to establish discrimination.(See also Discrimination Law Handbook, Second Edition, para 14.114)

The burden of proof regulations

17. In establishing less favourable treatment, the burden of proof regulations contained at Article 63A of the 1976 Order are often germane. (See Harvey on Industrial Relations and Employment Law, paragraphs 796 to 815)

18. The Igen guidance is set out in the above-referenced extract in Harvey at paragraph 806.

19. The application of the burden of proof regulations.in this jurisdiction should be read in the light of dictum contained in Northern Ireland Court of Appeal cases such as Nelson v Newry and Mourne District Council [2009] NICA 24 wherein Girvan LJ stated as follows:
[21] Article 63A(2) of the 1976 Order provides —
“(2) Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent—
(a) has committed an act of discrimination or harassment against the complainant which was unlawful by virtue of Part 111, or
(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant, the Tribunal shall uphold the complaint unless the

respondent proves that he did not commit or, as the case may be, is not to be treated as having committed the act.”

[22] This provision and its English analogue have been considered in a number of authorities. The difficulties which tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v. Wong [20051 3 All ER 812 considered the equivalent English provision and pointed to the need for a Tribunal to go through a two stage decision making process. The first stage requires the complainant to prove facts from which the Tribunal could conclude in the absence of inadequate explanation that the respondent had committed the unlawful act of discrimination. Once the Tribunal has so concluded the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment the Court of Appeal modified the guidance in Barton v. Investec Henderson Crosthwaite Securities Limited [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the Tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent a Tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v. Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.
[23] In the post-Igen decision in Madarassy v. Nomoure International plç [2007] IRLR 246 the Court of Appeal provided further clarification of the Tribunal’s task in deciding whether the Tribunal could properly conclude from the evidence that in the absence of inadequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:

“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (e.g. sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that on the balance of probabilities the respondent had committed an unlawful act of discrimination: could conclude in Section 63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject

only to the statutory “absence of an adequate explanation” at this stage the Tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made, by the complainant were of like ‘with like as required by Section 5(3.) and available evidence of all the reasons for the differential treatment…”

That decision makes clear that the words “could conclude” is not to be read as equivalent to “might possibly conclude”. The facts must lead to the inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be presumed.

[24] This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination. [my emphasis]

20. As regards the unlawful deduction of wages claim, Article 45 of the Employment Rights (Northern Ireland) Order 1996 states as follows:

Right not to suffer unauthorised deductions

45.—(1) An employer shall not make a deduction from wages of a worker employed by him unless—
(a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or
(b)the worker has previously signified in writing his agreement
or consent to the making of the deduction.
(2) In this Article “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—
(a)in one or more written terms of the contract of which the
employer has given the worker a copy on an occasion prior to
the employer making the deduction in question, or

(b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.
(4) Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.
(5) For the purposes of this Article a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.
(6) For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

EVIDENTIAL SUBMISSIONS:

(A) Failure to short-list
(R) Detrimental treatment
(C) Unlawful deduction of wages

A FAILURE TO SHORTLIST

21. The Claimant alleges that pregnancy was either ‘the’ or ‘a’ factor in the
decision to not shortlist her for the position of Senior Casework Officer.

22. It is common-case that the factor which the Claimant was found not to meet was as follows:

“Have at least one years experience of supervising staff or a team”

23. The Claimant in her application relied upon the following experience:

a. As Acting Senior Casework Officer from October 2009 to March 2010 (6 months);
b. As senior lawyer from July 2009 to October 2009 (3 months);
c. Supervision when the Head of Casework was absent from September 2008 to July 2009;
d. Supervisory experience when practising as a barrister.

24. The Claimant consequently was seeking to meet the criteria on the basis of supervisory experience acquired over a period of 3 to 4 years including some 9 months when she was the senior lawyer in the organisation and effectively supervising the casework team as well as previous experience (both in the organisation and when practising as a barrister). She was relying upon the previous experience as amounting to, broadly equivalent to or sufficiently comparable to ‘supervision’ that combined with her 9 months experience as the senior lawyer would be deemed sufficient for her to meet the relevant criterion. (Moreover the application of the criterion must be viewed in the context of her reserve candidature for the Head of Casework position, clearly a more onerous supervisory role.)

25. The Respondent’s recruitment and selection policy states as follows:

“If specific criteria cannot be tested from applications forms. these should be omitted from the selection process for all applicants. Reasonable inferences based on the information provided may be made as long as these are consistently applied to alt applicants.”

“Decisions reached for each applicant must be on the basis of information contained in their application form.”

26. These criteria when reversed present a rational approach to the testing of the short-listing criteria from application forms:
a. The decision should not be based on extraneous material;
b. Reasonable inferences can be drawn from the information provided by applicants, but such inferences must be consistently applied;
c. If criteria cannot be tested from the application forms, then it should be discarded.

27. The Claimant contended / contends that equality, fairness and good practice required the short-listing panel to treat her application in the same way as it treated applicants in relation to whom it had no independent knowledge.

28. It is contended on her behalf that the rational approach outlined in the previous paragraph ought to have been applied but was contravened.

30. It is notable that Alex Tennant gave evidence that when she worked with Save the Children in cases where there was uncertainty over whether an applicant may have met a shortlisting criteria, the practice was to shortlist candidates and resolve such doubts at interview.

31. Supervision was not defined and therefore that term simply references directing the work of people and observing that it is performed.(See the Oxford English Dictionary definition.)

33. It is submitted that a panel acting properly would have either shortlisted the Claimant on the basis of her experience as detailed in the application form without a query; or would have shortlisted her with a query which would be resolved at interview.

34. Aberrations that can be identified with the short-listing panel’s approach include:

a. The Claimant’s application was probed and extraneous information
applied;
b. The ‘shared understanding’ was never documented and apparently only
applied to the Claimant (see 3c particularly pages 8 and 10) —
c. An arbitrary view of the work of a barrister was adopted excluding all
barrister experience;
d. Mr Magee contributed to the barrister discussion raising the suspicion
that he had discussed the matter with his wife prior to shortlisting;
e. An ‘independent’ opinion was obtained from the Respondent’s
solicitors, [ ] addressing the
‘barrister issue’ and apparently confirming the arbitrary view that
barrister experience cannot equate with supervisory experience.
[

f. The Respondent’s evidence and in particular that of Mr Campbell placed emphasis on the extent to which Ms Ryan was out of the office prior to July 2009. However no mention was made of this in the defence. Indeed the typed version of the Claimant’s grievance interview notes was crucially altered in relation to the period September 2008 (thereby reducing her purported experience). See documents 2j and 2h) The alteration was relied upon by the Commissioner in the grievance decision and this constituted the defence as contained in the notice of appearance. Importantly no one was presented to give evidence in relation to this discrepancy nor the alleged source of the information giving rise to the alteration;
g. It contravened the procedure outlined above;

______________________
——I—.—.
36. Specifically the allegation is that there was a malign determination not to shortlist and the motivating factor (or a motivating factor) was the prospective impact the Claimant’s pregnancy would have on finance and staffing if she was appointed to the Senior position.

37. It is contended that the failure to shortlist the Claimant was a discriminatory act based at least in part on her pregnancy. The Claimant relies upon four factors in making this case: context, comments, anomalies in the process and evidential inconsistencies.(Relevant factors identified above, particularly in paragraphs 31 -34, are not necessarily replicated below.)

a. Context:

i. The Claimant was reserve candidate for the Head of Department position;
ii. In March 2010 there appeared to be a significant budget surplus and there was some unusual spending to reduce the surplus;
iii. At the end of March beginning of April it apparently dawned on the Chief Executive that there was not a significant budget surplus which apparently led to financial/ budgetary concerns within the senior management team as demonstrated by documentary evidence (e.g. 6A and 6B) and oral evidence from the Claimant and Catherine Quigley;
iv. The Chief Executive made calculations as to the financial ramifications should the Senior Casework Officer position be filled by a person due to go on maternity leave. These calculations appear to show that, at a time when the organisation had financial concerns, there was an awareness as to how much more it would cost the organisation if the Claimant was appointed to the Senior position;
v. At the Senior Management Team meeting on 12 April 2010 it was noted under finance that “Maternity pay will soon be due
but this will leave a gap in resource.”
vi. It seems plain from the Claimant’s evidence that most of pregnancy specific comments allegedly made by Ms Simpson were made after the 12 April - indicating a greater awareness of the Claimant’s pregnancy and a more negative view of same after that date;
vii. [

]
viii. At the short-listing meeting Mollie Simpson, Gerry Campbell and Robert Magee queried the Claimant’s experience using
information and knowledge that was not contained in or

inferable from the Claimant’s application to determine that she had not met the criterion;
ix. Following the SMT meeting the Claimant’s ‘acting-up’ position was terminated, by letter dated the 26Ih April;

b. Comments:

i. The Claimant corroborated by Catherine Quigley and Ceardh Morgan gave evidence that at the casework team meeting on 12th April 2010 following the SMT meeting Mollie Simpson told the Claimant that her maternity was a burden on the budget;

ii. Mollie Simpson stated in her grievance interview that “There was a concern as to whether or not we would be allowed cover
for her maternity leave. I said there was a strain on the budget
to cover for her; it was not directed at her”;

iii. The Claimant alleged that the finance officer, Katrina McLogan
had cryptically referenced a document in which a senior officer
was costing out what an employee would cost in two scenarios
and indicated her ‘outrage’ at this; it seems that this was a
reference to the document referenced at iii above;

iv. It seems plain from the Claimant’s evidence that most of
pregnancy-specific comments allegedly made by Ms Simpson
were made after the 12 April - indicating a greater awareness of
the Claimant’s pregnancy and a more negative view of same
after that date;

c. Anomalies in the short-listing process:

i. Mr Campbell left the short-listing meeting before the end and completed his shortlisting with Robert Magee and Mollie Simpson;

ii. Mr Campbell told the Tribunal that before he left the meeting a decision on the Claimant had been finalised subject to legal advice, but his short-listing form indicates that she to be shortlisted;

iii. Mollie Simpson, Robert Magee and Gerry Campbell queried the Claimant’s experience using information and knowledge that was not contained in or inferable from the Claimant’s application to determine that she had not met the criterion — this appears to breach the procedure identified above;

iv. The panel or members thereof applied a more specific definition of supervision to the Claimant’s application involving a formal role, one to one supervision and appraisals — this was not documented anywhere and it is highly questionable if it was applied to other candidates whose application form ‘evidence’ of supervision does not appear to demonstrate such experience (e.g. Bundle 3c candidate 01);

v. In response to a query from Alex Tennant that it seemed crazy or mad that the Claimant could be reserve candidate for the

Head of Casework yet not be shortlisted for Senior Casework
Office, Mr Magee left the meeting to get the Head of
Department recruitment file to clarify that the Claimant had not
been informed in writing that she was the reserve candidate.
Bizarrely Mr Campbell was present and had informed the
Claimant orally of this fact;

vi. The Claimant gave evidence that Mr Magee had previously
stressed to her that short-listing had to be done on the
information on the form alone;

vii. An arbitrary view that the work or aspects of the work of a
barrister cannot equate with supervisory work was adopted
excluding all barrister experience. [

]
(See above) It now seems that this was communicated
individually to panel members contrary to the pleaded case. The
alternate version only emerged when the Claimant gave evidence of her conversations with Alex Tennant during her examination in chief.

d. Evidential inconsistencies:

i. The notice of appearance does not address or refute the
Claimant’s alleged experience in the period September 2008 to
July 2009;

ii. The Commissioner failed to attend the Tribunal to explain the
anomaly at page 2 of the Claimant’s typed grievance interview
which inexplicably inserts words indicating that the experience
should be from September 2009, not 2008. Notwithstanding,
the grievance decision and the defence contained in the notice
of appearance is premised upon this discrepancy and the
Claimant side was unable to test this issue in cross examination
as the Commissioner failed to give evidence to the Tribunal;

iii. Mr Robert Magee in his letter of 30th April 2010 to the
Claimant (3p) advised her that the panel apparently recognised
that she did gain supervisory experience from joining in
September 2008 but that it was allegedly minimal and on a very
infrequent basis;

iv. In replies to a notice for further and better particulars the
Respondent stated as follows:

‘The individual panel members were not convinced that the Claimant had met criterion 4. It was then suggested that the panel should accept what she had said on her application without questioning it, thereby accepting she did meet essential criterion 4.It was agreed by all members of the panel that a legal opinion should be sought. As result of the advice obtained Mr Magee reported to the panel that the solicitors view was also that the role of Junior Counsel was not a supervisory one and the panel could not just accept the Claimant’s

assertions without question, if they were in doubt but that it was a matter of assessment for the panel to decide if the Claimant met this particular criterion. In the end the panel concluded that she didn’t meet the criterion and couldn’t be short-listed. [Sentence 2 is underlined for easy reference as it is referenced below]

v. As part of her evidence the Claimant revealed that she had spoken to Alex Tennant, a member of the short-listing panel, on a couple of occasions and that she had been informed inter alia of the following:

1. she was not happy with what had gone on in the room;
2. the Claimant as a lawyer would be allowed to see the documentation;
3. Mr Magee had left the room;
4. there had been discussion about supervision;
5. herself and Megan had been of the opinion that the Claimant should be shortlisted on the material she had on the form

6. she had questioned the appropriateness of obtaining a legal opinion but the Chair (Mollie Simpson) and Mr Magee had assured her it was appropriate and she acquiesced;
7. she had queried how the Claimant could be shortlisted for
Head of Casework and not Senior Casework Officer and
Mr Magee had gone to get a file and informed her that the
Claimant had not been informed she was reserve
candidate;
8. she questioned whether the criteria was flawed given the supervision requirement;
9. she was individually informed by Mr Magee that the Claimant had not been shortlisted based on the advice obtained. The advice had not been brought back to the panel collectively

(The most significant evidence has been underlined.)

vi. The Claimant produced notes of the more recent conversation with Ms Tennant;

vii. The Respondent’s defence substantially changed following the Claimant giving this evidence. It seems potentially as a result of the Claimant giving this evidence the Respondent’s case as presented at tribunal was inconsistent with the pleaded case as follows:

1. No member of the panel giving evidence accepted that a panel member or members had made the suggestion at sentence 2 highlighted above;
2. Alex Tennant produced a statement made in 2010. This statement had not been previously disclosed and contradicted the pleaded case
3. Ms Tennant’s evidence both in her statement and her evidence under cross examination contrasted

significantly with the ease as pleaded and set out above

- but additionally was not consistent with the Claimant’s evidence of her communications with Ms Tennant. In particular:

1. it was suggested (on behalf of Ms Tennant) that Ms Tennant never mentioned Megan in the
conversation with the Claimant. However that
contention was seemingly discarded when the
Claimant produced the document of her notes of
the second conversation which referenced
Megan;

2. Ms Tennant indicated that she was informed during the short-listing meeting that it was appropriate to ‘probe’ the information set out in the application, and obtain a legal opinion, and it seems these suggestions were made by Ms Simpson and Mr Magee. (The Respondent strongly contended Ms Tennant had not used this work but the Tribunal accepted that she had used the word.) Mr Campbell corroborated this by indicating that they had to go ‘beneath the surface’, stated It is this probing that gives rise to concerns as detailed above;

3. Ms Tennant suggested that there was a collective consensus that the Claimant did not meet the
criteria and refused to confirm both:

1. (a) the Claimant’s evidence that she and Megan thought the Claimant should be short-listed and tested at interview on supervision; and
2. (b) that she or anyone else had made the suggestion pleaded in the second sentence of the second page of Is as set out above

4. Contrary to the pleading the Respondent witnesses indicated that legal advice was not brought back to the panel with the panel then reaching a decision based thereon. In their oral evidence the Respondent witnesses explained that a final decision not to short-list was reached subject to legal advice; and, that legal advice was obtained and panel members informed the following day;
5. No reference was made by Gerry Campbell in his grievance interview to the decision taken to obtain a legal opinion whether by agreement or at all. Rather he comments “we said we would park it in terms of the banisters experience”. (2n)
6. Contrary to the pleadings the Respondent witnesses gave evidence that legal advice was obtained not only
on the bar issue but also on whether the panel could go

behind the information on the application and have regard to extraneous material. This suggestion was
never made prior to the hearing. Moreover there was no mention of this in the grievance investigation. Notably in re-examination Gerry Campbell stated that legal advice was only obtained on the bar issue

vi. Whilst Caitriona McLogan’s untested statement sought to cast doubt on any interaction with the Claimant in or about May 2010 concerning a document, on the basis that such a conversation would be a breach of confidentiality and she did not ‘recollect’ such a conversation, it is difficult to see how the Claimant and her representatives could have known to ask so specifically for such a document (as they did in a letter dated 7 September 2010) if the interaction had not taken place. In reexamination the Claimant confirmed that the conversation had been between her and Caitriona only; and, that she had no other source for this information which led to the information being uncovered following a specific discovery request. All of this gives evidential weight and cogency to the Claimant’s evidence
that Ms McLogan was exercised (‘outraged’) about the
propriety of the comparative exercise, i.e. comparing cost with
a pregnant senior casework officer;

vii. The probing and scrutiny given to the Claimant’s previous experience of supervision in terms of the nature of the
supervision utilised extraneous material, involved inferences
which were not applied to other candidates (in terms of the ‘shared understanding’ of one on ones, appraisals etc) and rather than being discarded was determinative. The approach was diametrically contrary to the Respondent’s procedure as set out above;

viii. Mollie Simpson and Gerry Campbell rejected the argument that there were financial concerns over the pregnancy: Ms Simpson stated there were staffing concerns not financial concerns although in her grievance interview she had used the phrase ‘strain on the budget’; and Mr Campbell belittled the amount of finance involved. However:

been occupied upon commencement of the Claimant’s maternity leave nor permanent appointment until say September at the earliest;
2. Mr Campbell’s evidence on the cost of the maternity (i.e. that it would cost circa £2700 in maternity pay) was clearly an under-representation and mis-representation failing to take into account other clearly relevant factors such as salary differential in obtaining cover and pension considerations. [

]
3. The idea that Mr Campbell and senior management were not harbouring financial concerns at that time sits uneasily with the documentation in the bundle at section 6 (6A). If there were no real concerns, why did Mr Campbell carry out his calculations (at 6a) and why was Ms McLogan so exercised about the calculations? It is submitted that this ‘scenario planning’ evidenced a knee-jerk reaction to the Claimant’s application given the financial concerns and her pregnancy and impending maternity. It was a discriminatory knee-jerk reaction;

B DETRIMENTAL TREATMENT

38. The second but related part of the claim concerns two discrete forms of alleged discrimination:

a. inappropriate comments;
b. an inappropriate requirement.

39. The comments:

a. Ms Simpson stating in early March that it was inconvenient to have a
pregnant senior case work officer;
i. Mr Campbell indicated he had not heard the comment but it appears he may have been occupied working on a calculator or
computer at the relevant time;
ii. Generally, it is submitted that the Claimant was a credible and consistent witness whereas Ms Simpson was not a credible Witness;
b. Ms Simpson stating in a conversation with Catherine Quigley ‘guess who is not losing weight’;

_______

i. Ms Quigley gave evidence corroborating the Claimant’s allegation;
ii. It is submitted that Ms Quigley was a credible and impressive witness;

c. Ms Simpson stating on the 12 April 2010 that the Claimant’s maternity was a burden on the budget;

i. Ms Quigley gave evidence corroborating the Claimant’s allegation;
ii. Ms Morgan gave corroborating evidence which was not challenged or refuted in cross examination. Indeed the
Respondent elected not to cross examine this witness;
iii. Ms Simpson in the grievance interview stated: “There was a concern as to whether or not we would be allowed cover for her maternity leave. I said there was a strain on the budget to cover for her; it was not directed at her
iv.[

]

(It is open to the Tribunal to find for the Claimant on this point particularly given the failure to refute Ms Morgan’s corroborative evidence. Indeed it is difficult to see how the Tribunal can fail to find for the Claimant on this point. Moreover the point is central to much of the Claimant’s case.)

d. In or about 20th April the Claimant alleged Ms Simpson made a comment about the Claimant’s fingers being ‘fatter’ than her fingers;

i. In refuting this Ms Simpson said the Claimant bad worn a black engagement ring but the Claimant has no such ring;

e. In the period 5th to 7th May the Claimant alleged that Ms Simpson made a number of inappropriate comments — in summary that that she was going to pop soon and that the Claimant could not go off too early as there was to much work to be done — that she [Ms Simpson] was going to be left in the lurch — and that she [Ms Simpson] was concerned the Claimant’s maternity leave would leave the department under pressure and she would have to phone the Claimant when she was on maternity leave;

i. The Claimant made contemporaneous notes providing cogent evidence of the veracity of these allegations;
ii. It was common-case that there was a backlog of work which needed to be completed before the Claimant went on maternity leave which involved the Claimant in-putting information onto computer;
iii. Whilst Ms Simpson sought to give the impression that by the start of May the in-putting work was all but complete, a case

review meeting minute of 11 May indicates that the backlog
was not complete and requiring two days work;

iv. Ms Quigley corroborated the allegation that Ms Simpson had commented about phoning the Claimant when in labour / on
maternity leave;

f. No grievance decision was reached on allegations as referenced in the originating application, letters h and j.

40. The requirement:

a, The Claimant alleges that Mr Magee told the Claimant that she was required to obtain permission before she could attend external
meetings;
b. The Claimant referenced ease review minutes indicating her seeking permission for same (6d);
c. Mr Magee was unable to provide an unequivocal denial of this allegation;
d. Despite the Respondent’s solicitor suggesting to the Claimant that Ms Simpson would say that the Claimant had never asked for permission
to attend external events, Ms Simpson did not give oral evidence on the issue;
e. Consequently it is submitted that on balance the Claimant’s evidence is substantially more compelling.

C UNLAWFUL DEDUCTION OF WAGES

41. In relation to the alleged premature termination of acting up responsibility:
a. The Claimant gave evidence that Mr Campbell had informed her that she would remain Acting Senior Casework Officer until the position
was filled;
b. By letter of 26th April the Claimant was informed that she would stand down on the 14 May 2010;
c. The Claimant alleges that this amounted to a breach of contract and unlawful deduction of wages;
42. It is submitted that there is a breach of an agreement for the purposes of Article 45 of the Employment Rights (Northern Ireland) Order 1996.
43. The Claimant’s loss has been set out in the schedule of loss.

CONCLUSION

44. It is submitted that there is a prima facie case that the Claimant was not short- listed at least in part on the grounds of her pregnancy.

45. Supervision simply involves directing a person to do work and observing that it is done. One can obtain experience of such supervision in multifarious roles, situations and scenarios.

46. Assuming the Claimant had 9 months supervision after Ethne Ryan went on leave in July 2009, she only had to find experience that topped up the 9 month period, i.e. experience that was broadly equivalent to suffice for the purposes of short-listing.

49. In this case a broad approach was apparently adopted in relation to other candidates (e.g. 3c page 8) but a very different approach was adopted in relation to the Claimant. The panel’s ‘shared understanding’ of ‘supervision’ was not applied to other candidates. An arbitrary approach was adopted in relation to the Claimant’s experience. This contrasts starkly with broad approach discussed above and the apparent suggestion (as indicated in the pleaded case sentence 2 highlighted above) by a panel member, i.e. to the effect that the panel should short-list the Claimant subject to satisfying itself at the interview stage that she had met the criteria for the post.

50. The decision not to shortlist the Claimant based on her supervision experience is clouded in procedural deviation, anomaly and evidential inconsistency. Specifically the short-listing must be considered within the context of an organisation with financial and staffing concerns and a perception that pregnancy and maternity was a burden on the organisation both from financial and staffing perspectives.

51. Clearly there was a concern over the impact maternity could / would have on staffing and finance. Whether or not such concern on the part of Respondent officers including Ms Simpson and Mr Campbell was overblown and an overreaction is irrelevant. The concerns seem to have motivated Ms Simpson and Mr Magee along with Mr Campbell to subject the Claimant’s application to much more stringent and rigorous scrutiny than other applicants; and contrary to the suggestion of Ms Tennant, led them to breach their policy and utilise their own information to probe and unpick the Claimant’s experience.

52. Additionally the comments referenced above add weight to the Claimant’s belief that pregnancy was potentially germane in the panel’s mind / the minds of panel-members on the 21 April 2010.

53. The ‘why’ question must be considered in the light of the points outlined above under context, comments, anomalies and inconsistencies It is respectfully submitted that such consideration cannot but raise a prima facie case of pregnancy discrimination.

54. What the Respondent pleaded as a version is no longer sustainable. The fact that the Respondent has presented a number of versions casts doubt on the veracity of its defence. The defence is further undermined by the anomalies and inconsistencies identified above.

55. It appears that a version closer to the truth only emerged when the Claimant gave evidence about her communications with Ms Tennant. The Respondent’s case changed at that point. But the alternate version given by the Respondent’s witnesses at the Tribunal is also fundamentally flawed, particularly in relation to (a) the denial that no member of the panel giving evidence accepted that a• panel member or members had made the suggestion at sentence 2; and, (b) Mr Campbell’s form indicating that the Claimant had been short-listed when apparently the panel had finalised its view that she would not be short-listed (subject to legal advice) before he left the meeting.(See Harvey on inferences as referenced at paragraph 17 above.

56. Consequently a prima facie case has been raised which relies in part upon the Respondent’s inconsistent explanations; and it is submitted that the Respondent cannot consequently discharge its legal / evidential burden to refute the prima facie case.

57. In relation to the comments, it is submitted that the Claimant’s evidence and that of her witnesses is to be preferred to that of Ms Simpson.

58. In relation to the discriminatory requirement, again, the Claimant’s evidence appears more cogent and compelling than the Respondent’s.

59. Finally it is submitted that there was an unlawful deduction of wages following the premature termination of the Acting up position.

For and on behalf of the Claimant

May 2011

Our Ref: KEAO220001/DD/JML
Your Ref

27 May 2011
Sent by Email and Post

mail@cmploymenttribunals.org

The Secretary
Office of the Industrial Tribunals &
The Fair Employment Tribunal
Killymeal House
2 Cromac Quay
Belfast BT72JD

Dear Sirs,

Re: Francesca Keaney .v. Northern Ireland Commissioner for Children and Young People Case Reference: 1623/10

We refer to the Respondent’s comments on the Claimant’s submission as received with the email of Mr Daly on 25th May last.

The comments of the Respondent are refuted in general. We refer to the discrete points below. Simply because we may not specifically address all response comments should not lead to a presumption that they are accepted. Rather a contrary presumption should operate.

In particular, by way of response and according to the paragraph numbering of the Claimant’s original submission the Claimant comments further:

(a) Paragraph 4: The Respondent’s comments are refuted. The matters form part of the Claimant’s case eg reference letter of22 July 2010 to Ms Patricia Lewsley.
(b) Paragraph 24: This was addressed in oral submission.
(c) Paragraph 25: This is clearly wrong as the decision was based on extraneous information including perceptions of the work of a barrister, perceptions of the amount of time Ms Ryan would have been out of the office and the Claimant, and a legal opinion.
(d) Paragraph 29: There is no evidence to substantiate the Respondent’s contention that had the Claimant been let through to the interview stage she would have objected to the issue being revisited. Generally, it is plain that the Respondent failed to adhere to its procedure. ‘The key question is why was the Claimant treated differently compared to the other candidates?
(c) Paragraph 30: This as addressed in oral submission.

(f) Paragraph 32: The Respondent’s submission is wrong. The Tribunal will have its note of the evidence. The alleged “shared understanding” was interpanel. The Claimant questions in any event how this was applied to all candidates when for example one candidate merely wrote that they supervised.
(g) Paragraph 34 (a): See above.
(h) Paragraph 34 (b): This is clearly not the case. See above and dealt with in oral submission.
(i) Paragraph 34(d): This matter could not be fully put to Mr Magee as the Respondent had not transparently divulged that his wife was no longer a barrister at the relevant time but a solicitor employed by the Respondent’s legal representatives.
(j) Paragraph 34(e): The hill relevance of this matter again could not be tested for the reason above.
(k) Paragraph 34(t): The Respondent’s contentions were not put to the Claimant. The Tribunal will have a note of its evidence. One aspect of the Claimant’s points on this issue is that solely a temporal analysis is inadequate.
(I) Paragraph 34 (h): The Respondent’s approach contravened the procedure. Clarified further in oral submission
(m) Paragraph 35: The Tribunal will understand that this evidence has a particular context when one includes the clearly defective pleadings constantly referenced during the 1-learing.
(n) Paragraph 37 (a) (ii): Catherine Quigley gave specific evidence on this issue as did the Claimant.
(o) Paragraph 37: (a) (vii): This document was not disclosed. The Tribunal will have a note of the evidence. Ms Simpson’s evidence was that there may have been an informal meeting after the SMT meeting. The document appears to controvert her evidence that no formal team update meeting had been arranged.
(p) Paragraph 37 (d)(vii) (i): It is simply incorrect that this was not put to any witness except
Alex ‘Pennant. it was put to all the Respondent’s witnesses. The Tribunal will have a
note of its evidence. Ms Simpson for example in her evidence accepted that Alex
Tennant may have said the suggestion. -
(q) Miss McGlogan was not tendered to. give evidence so little weight can be given to the Respondent’s contentions on what she may have had explained or not.
(r) Paragraph 39(c) (ii): [‘he Tribunal will have a note of Ms Morgan’s evidence that Ms Simpson referred to the burden of the Claimant’s maternity leave. There is no foundation to suggest that her evidence was vague in the extreme and does not assist the Tribunal.
(s) Paragraph 39(d) (i): The Tribunal will have a note of the evidence in relation to the rings and the black ring. [he assertion now made by Mr [July that it was put to the Claimant that Ms Simpson had found the ring very’ different because it had a “black’’ stone is incorrect. The contention arose upon Ms Simpson’s cross examination. The Claimant made it clear that she did not have a black ring.

Yours faithfully,

________________________________
HIGGINS HOLLYWOOD DEAZLEY

SOLICITORS

Submission on behalf of NICCY

On day six of this case in the course of cross examining Mr. Robert Magee, Counsel for the Claimant stated “what this case is about is a failure to follow your recruitment and selection procedure”. That is not what this case is about and even if the Tribunal were to find that the Respondents had failed in some respects to follow their own recruitment and selection, that does not entitle them to find on behalf of the Claimant. This is an alleged pregnancy related discrimination case. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.

I refer the Tribunal to the CMD records of the 12th October2010 and the 2” December2010. Therein you will find the nature of the case the Claimant is making and the issues to be
determined by the Tribunal. It is accepted that as an alleged pregnancy related discrimination case the issue of a comparator does not apply.

I have set out an extract from the Court of Appeal Decision in Nelson v Newry District Council and I submit this is the relevant law for this case as far as the burden of proof is concerned.

Nelson V Newry District Council No.: [2009] NICA 24

[21] Article 63A(2) of the 1976 Order provides-

—
“(2) Where, on the hearing of the complaint, the complainant
proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent-

—
(a) has committed an act of discrimination or harassment
against the complainant which was unlawful by
virtue of Part Ill, or

— (b) is by virtue of Article 42 or 43 to be treated as having
committed such an act of discrimination against the
complainant, the Tribunal shall uphold the complaint
unless the respondent proves that he did not commit

• -
or, as the case may be, is not to be treated as having
committed the act.”

[22] This provision and its English analogue have been considered in a number of authorities. The difficulties which tribunals appear to continue to have with applying the provision in individual -cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in ken v. Wong [2005] 3 All ER 812 considered the equivalent English provision and pointed to the need for a Tribunal to go through a two stage decision making process. The first stage requires the complainant to prove facts from which the Tribunal could conclude in the absence of inadequate explanation that the respondent had committed the unlawful act of discrimination. Once the Tribunal has so concluded the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment the Court of Appeal modified the guidance in Barton v. Investec Henderson Crosthwaite Securities Limited [20031 IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the Tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent a Tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v. Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

[23] In the post-Igen decision in Madarassy v. Nomoure International plc [20071 IRLR 246 the Court of Appeal provided further clarification of the Tribunal’s task in deciding whether the Tribunal could properly conclude from the evidence that in the absence of inadequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the jg approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-

from all the evidence before it. This would include evidence
adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage the Tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.

[25] In Laing v. Manchester City [2006] IRLR 748 Elias J stated in paragraph 71:-

“There seems to be much confusion created by the decision in Igen. What must be borne in mind by a Tribunal faced with a risk claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting of the

burden of proof simply recognises that there are problems of proof facing an employee which would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

73. No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages. It is not obligatory on them normally formally to go through each step in each case.

74. The focus of the Tribunal analysis must at all times be the question whether or not they can properly and fairly infer race discrimination, if they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination that is the end of the matter. It is not improper for a Tribunal to say in effect “there is nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race.”

It is common case that the Claimant was not shortlisted for the post of Senior Caseworker. The issue for the Tribunal was why was that? The Claimant’s Counsel will urge you to draw an inference from all the evidence and conclude that this was because she was pregnant and the cost associated with that. In my respectfully submission, in light of the Respondent’s innocent decision not to shortlist her, the Tribunal should have no difficulty in finding that there was no discrimination against the Claimant on the grounds of pregnancy.

The Respondent’s innocent explanation is very simple and straightforward. One of the criterion for short listing for this post was that the Claimant had to DEMONSTRATE that she had at least one years experience of supervising staff or a team. Despite her valiant attempt to make the case that she had this, it was the collective view of the short listing panel that she did not. Even her Counsel accepted that it was unclear whether she meet the criterion or not. This was on day 5 of the hearing. That means she accepts she did not

1
4E

DEMONSTRATE AS REQUIRED AND THEREFORE WAS NOT ENTITLED TO BE SHORTLISTED.

It is the Claimant’s case that the Respondent’s short listing panel should have ignored the fact that they knew that her claims of having this experience, to be fanciful arid simply shortlisted her on the basis that she claimed to have had that experience. That is just a ridiculous proposition. They say it could have been probed at interview. That’s not correct it would not have been appropriate to take this approach. The Claimant’s Counsel accepted that there was nothing wrong when checking out the claims of Candidate no 3. Their position is contradictory.

The Claimant will point to what she says were irregularities in the short listing process, for example the fact that Mr. Magee left the short listing meeting and went and got the recruitment file for the post of Head of Legal. The innocent explanation for this is was that a question had come up with regards to whether or not the Claimant had in fact been deemed to have been the reserve candidate for that position and Mr. Magee obtained the file simply to check the position. The Tribunal may think he should not have done that at that stage and if one applies a counsel of perfection, then you certainly could be critical of the panel for allowing this to happen, but that does not turn this case into one of discrimination. Another point is that Mr. Campbell left the short listing meeting before all the candidates had been considered. The innocent explanation for this is that he had to go to a meeting in Stormont. The important point to remember about this is that before he left, the Claimant’s application had been considered and fully discussed and a consensus had been reached that subject to legal advice she would not be short listed. A lot has been made about the fact that legal advice was obtained and quite a bit of time was spent during the hearing debating what questions the legal advice was obtained on. In this respect I would refer the Tribunal to the Respondent’s replies to additional information dated the 29th November 2010 and it is quite clear from that that there were two issues. The first relates to the role of Junior Counsel and the second issue related to the principle of whether the panel should simply accept the Claimant’s assertions without question. The legal advice was that they should not and it was a matter for their assessment to decide if she met the particular criterion. It is quite clear that this is what the panel had done before seeking legal advice and had arrived at a consensus on the basis that they were not convinced that the Claimant had met criterion number 4 and accordingly she was not shortlisted.

In essence, the legal advice only confirmed what they had already knew and done. Again I would accept that if one applies the Counsel of perfection, one can be critical of the Respondent in respect of these matters. However, that does not mean that the Tribunal can find in her favour. There is an innocent explanation here for all of these matters and therefore it is not open to the Tribunal to draw the inferences that the Claimant is asking you to do.

The other part of this case relates to the alleged comments made to the Claimant. The Tribunal heard the witnesses’ evidence in respect of this and from the paperwork can clearly see the parties’ different versions of events. Accordingly I do not propose to waste time going into the detail of this evidence. The Tribunal can make their own assessment as to the

credibility of the witnesses who spoke about these matters, It is my respectful submission that there were clearly occasions during their evidence that the Claimant and in particular the witness, Catherine Quigley, did not come across as credible witnesses. On the other hand, it is my respectful submission that both Mr. Magee and Mrs Simpson came across in a very straightforward and credible manner when giving their evidence on these matters.

- The Tribunal will recall that I did not cross examine the other witness for the Claimant, Miss Morgan. The reason for this is that she did not give any evidence that assists either party. She only spoke briefly about one matter i.e. the alleged comments by Ms Simpson following the SMT meeting. This is a matter upon which the Tribunal has received conflicting versions as to what was precisely said and this witness was not specific as to what was said. In my respectful submission her evidence is of no assistance to the Tribunal

The Claimant produced very late in day a document pertaining to be contemporaneous notes. I respectfully submit that it is clear from these that they are not contemporaneous and I submit that this is a factor the Tribunal ought to consider when considering the Claimant’s creditability.

I would ask the Tribunal to ask themselves the question; why if all of these things were to this lady to the extent she claims they were, why did she not either tell Mrs Simpson to stop making these alleged remarks or take the matter up with Mr Magee, Mr. Campbell, the Chief Executive or any other member of Senior Management including the Commissioner.

The Claimant is clearly a very confident young lady. She had a good working relationship with Mr. Campbell. The Tribunal should not be taken in by her assertion that she was all at sea and did know who to turn to. This is just not credible, particularly in light of the fact that the Claimant had gone and complained in March 2010 about another senior Manager with respect to a remark that had been allegedly made to her.

UNLAWFUL DEDUCTIONS.

The evidence clearly shows that there was no promise or assurance given to the Claimant that she would continue in the acting up role until someone was permanently appointed and accordingly she had no contractual entitlement to this and therefore this claim must fail.

In conclusion, it is my respectful submission that the evidence in this case before the Tribunal is of such a nature that the Tribunal that they are bound to dismiss the Claimant’s claims in all respects.

Gerry Daly
Solicitor for the Respondent

IN THE OFFICE OF THE INDUSTRIAL TRIBUNALS AND THE FAIR
EMPLOYMENT TRIBUNAL

Francesca Keaney v Northern Ireland Commissioner for Children and Young
People

SUBMISSION ON BEHALF OF THE CLAIMANT with the
Respondent’s representative’s comments in red.

I. This is primarily a pregnancy discrimination claim which falls into interrelated
parts and there is also a further claim for unlawful deduction of wages:

a. the Claimant alleges that she was not shortlisted for interview for the
position of Senior Casework Officer in April 2010 because she was
pregnant and was short to commence her maternity leave (this aspect
of the claim is referenced ‘failure to shortlist’);

b. the Claimant alleges that she was subjected to pregnancy-related
discrimination in the form of detrimental treatment including hurtful
comments and the imposition of an inappropriate requirement to obtain
permission to attend external events because of her pregnancy; (this
aspect of the claim is referenced ‘detrimental treatment’);

c. there is also an unlawful deduction of wages claim - premature
termination of her acting up position contrary to understanding and
agreement.

2. The background can be summarised briefly:

a. The Claimant commenced practise as a barrister in 2006;
b. She obtained a position as Casework Officer with the Respondent in
September 2008;
c. The I-lead of Casework, Ethne Ryan, went on sickleave in July 2009,
Gerry Campbell formally taking responsibility for the Department;
d. She was appointed Acting Senior Casework Officer in October 2009;
e. She was reserve candidate for the position of Head of Casework,
Mollie Simpson appointed to that position in February 2010;
C Mollie Simpson started work on the 2 March 2010;
g. The position of Senior Casework Officer was advertised in March
2010;
h. The Claimant applied for the position;
i. The short-listing took place on the 21 April 2010 and the Claimant was
not shortlisted;
j. The Acting up position was terminated by letter dated 76ch April on the
14 May;
k. The Claimant went on maternity leave at the end of May 2010 and
returned to work this month, May 2011.

3. By letter dated 13 May 2010 the Claimant lodged a grievance with her
employer alleging pregnancy discrimination. The grievance was subsequently
largely replicated in the tribunal claim which was lodged in June 2010.

4. An investigation into the grievance was undertaken by Patricia Lewsley
Commissioner of the Respondent organisation and interviews held with the
Claimant, Gerry Campbell (Chief Executive), Robert Magee (Human
Resources) and Mollie Simpson (Head of Casework). No interview was held
with Alex Tennant, Head of Policy and Research and a member of the short-
listing panel. No explanation has yet been provided for this omission. A
further significant omission in the investigation was the failure to interview
Ceardh Morgan or Catherine Quigley. It is also notable that the investigation
failed to reach findings on two of the allegations nor refute same. (See
paragraphs (i) and (j) of decision letter 7th July 2010). It is not and never has
been part of the Claimant case that there was anything wrong with the
investigation or that it has any bearing on the issues before the Tribunal. I
refer the Tribunal once again to the CMD records where the issues were
identified.

5. A decision issued on 7 July 2010 from the Commissioner Patricia Lewsley
essentially finding that the Claimant had not been subjected to discrimination
or inappropriate treatment.

6. As already indicated a claim was lodged in the Office of the Industrial
Tribunal and the Fair Employment Tribunal in June 2010. The proceedings
were managed at a number of case management hearings and the case heard in
April 2011 between the 1 and 19th for 5 1/2 days. Provision has been made
for oral submissions on the 25 May 2011.

7. These written submissions fall into two main parts:

a. Legal submission;
b. Evidential submission

The Relevant Law. (This section has been deleted as 1 have no comments to make on
same)
8. X
9. LX
l0. X
11.X
12.X
13.X
14.X
15.X
16.X
17.X
18.X
19.X
20.X

EVIDENTIAL SUBMISSIONS:

(A)           Failure to short-list
(B)      Detrimental treatment
(C)     Unlawful deduction of wages

A FAILURE TO SHORTLIST

21. The Claimant alleges that pregnancy was either ‘the’ or ‘a’ factor in the
decision to not shortlist her for the position of Senior Casework Officer.

22. It is common-case that the factor which the Claimant was found not to meet
was as follows:

“Have at least one years experience of supervising staff or a team

23. The Claimant in her application relied upon the following experience:
a. As Acting Senior Casework Officer from October 2009 to March 2010
(6 months);
b. As senior lawyer from July 2009 to October 2009 (3 months);
c. Supervision when the Head of Casework was absent from September
2008 to July 2009;
d. Supervisory experience when practising as a barrister.

24. The Claimant consequently was seeking to meet the criteria on the basis of
supervisory experience acquired over a period of 3 to 4 years including some 9
months when she was the senior lawyer in the organisation and effectively
supervising the casework team as well as previous experience (both in the
organisation and when practising as a barrister). She was relying upon the
previous experience as amounting to, broadly equivalent to or sufficiently
comparable to ‘supervision’ that combined with her 9 months experience as
the senior lawyer would be deemed sufficient for her to meet the relevant
criterion. (Moreover the application of the criterion must be viewed in the
context of her reserve candidature for the Head of Casework position, clearly a
more onerous supervisory role.) The requirement was to “Demonstrate” that
she had “at least one years experience of supervising staff or a team” it was
not sufficient for her to rely upon the previous experience as amounting to,
broadly equivalent to or sufficiently comparable to ‘supervision’ that
combined with her 9 months experience as the senior lawyer. The fact is she
did not “Demonstrate “that she meet the criteria and could not be short listed.

25. The Respondent’s recruitment and selection policy states as follows:

“If specific criteria cannot he tested from applications forms, these should be
omitted from the selection process/or all applicants. Reasonable inferences

based on the information provided may be made as long as these are
consistently applied to all applicants.

“Decisions reached for each applicant must be on the basis of information contained in their application form. “ It was the Respondent evidence that
the decision not to shortlist was based on the information contained within her application form.

27. The Claimant contended/ contends that equality, fairness and good practice required the short-listing panel to treat her application in the same way as it treated applicants in relation to whom it had no independent knowledge.

28. It is contended on her behalf that the rational approach outlined in the previous paragraph ought to have been applied but was contravened.

29. Further if there was doubt as to whether the essential criteria was fulfilled the appropriate approach ought to have been to test her application within the process by short-listing her and resolving any doubts through questioning at interview. This ensured the process maintained its integrity and avoided unfairness. This is not accepted by the Respondent as the appropriate approach. Had the Claimant been let through to the interview stage she would have objected to this issue being revisited.

31. Supervision was not defined and therefore that term simply references directing the work of people and observing that it is performed.(See the
Oxford English Dictionary definition.)

32. The idea that the panel applied a ‘shared understanding’ of supervision involving ‘one on ones’, appraisals and a formal structure relationship was not part of the documented criteria and was not universally applied — indeed apparently only applied to the Claimant.(Reference the applicant at 3c page 8) ??? Shared understanding was mentioned by AT in that there was a shared understanding in the organisation as to what supervision is and this as applied across all candidates.

33. It is submitted that a panel acting properly would have either shortlisted the
Claimant on the basis of her experience as detailed in the application form
without a query; or would have shortlisted her with a query which would be
resolved at interview.

34. Aberrations that can be identified with the short-listing panel’s approach
include:

a. The Claimant’s application was probed and extraneous information
applied; there was no extraneous information applied.
b. The ‘shared understanding’ was never documented and apparently only
applied to the Claimant (see 3c particularly pages 8 and 10) —9” AT
said shared understanding was applied to everyone.
c. An arbitrary view of the work of a barrister was adopted excluding all
barrister experience;
d. Mr Magee contributed to the barrister discussion raising the suspicion
that he had discussed the matter with his wife prior to short listing;
This was not put to him.
e. An ‘independent’ opinion was obtained from the Respondent’s
solicitors, now known to be Mr Magee’s wife’s firm, (the fact that Mr
Magee’s wife works in Francis Manna and Company is irrelevant)
addressing the ‘barrister issue’ and apparently confirming the arbitrary
view that barrister experience cannot equate with supervisory
experience. Despite relying heavily on the argument that an
‘independent’ legal opinion had been obtained by the Respondent on
the issue, it is further notable that the Respondent never disclosed the
personal relationship between it and its solicitor; there is no personal
relationship between the Respondent and its solicitor. Mr Magee is not
a Respondent in these proceedings. His wife was not the solicitor who
gave the advice.
f. The Respondent’s evidence and in particular that of Mr Campbell
placed emphasis on the extent to which Ms Ryan was out of the office
prior to July 2009. This is not the case at all. In his evidence (IC stated
that the Head of Legal did have some external work out and about. The
amount of time spent outside was similar to other Head of Department
posts and there were no arrangements for acting up or supervision
when this was the case. There were never periods of days or weeks on
end, there were meetings to me attended and some training and the
staff reported to GC when the Head of Legal was on leave. However
no mention was made of this in the defence. Indeed the typed version
of the Claimant’s grievance interview notes was crucially altered in
relation to the period September 2008 (thereby reducing her purported
experience). See documents 2j and 2h) The alteration was relied upon
by the Commissioner in the grievance decision and this constituted the
defence as contained in the notice of appearance. Importantly no one
was presented to give evidence in relation to this discrepancy nor the
alleged source of the information giving rise to the alteration; More
importantly this was not part of the Claimant’s case and as I have
already said she did not make the handling of the grievance part of this case.

g. It contravened the procedure outlined above; what did?

35. Such anomalies together with the apparent determination particularly on the part of Magee, Campbell and Simpson, to unpick the Claimant’s supervisory experience as detailed in the application give rise to a real query over the.. short-listing decision. The Tribunal heard evidence from Ms Tennant that no one on the panel was convinced that she had met the criteria.

36. Specifically the allegation is that there was a malign determination not to shortlist and the motivating factor (or a motivating factor) was the prospective impact the Claimant’s pregnancy would have on finance and staffing if she was appointed to the Senior position. This is not borne out by the evidence. It is simply a contention without foundation.

a. Context:

i. The Claimant was reserve candidate for the Head of Department position; this is irrelevant.

ii. In March 2010 there appeared to be a significant budget surplus and there was some unusual spending to reduce the surplus; There is no evidence to support the assertion that there was unusual spending. In any event the uncontroverted evidence before the Tribunal is that a budget surplus for the financial year ending 2009/2010 had no bearing on staffing issued for
2010/2011

iii. At the end of March beginning of April it apparently dawned on the Chief Executive that there was not a significant budget surplus which apparently led to financial / budgetary concerns within the senior management team as demonstrated by documentary evidence (e.g. 6A and 6B) and oral evidence from the Claimant and Catherine Quigley; this is not the case at all.

iv. The Chief Executive made calculations as to the financial ramifications should the Senior Casework Officer position be filled by a person due to go on maternity leave. These calculations appear to show that, at a time when the organisation had financial concerns, there was an awareness as to how much more it would cost the organisation if the Claimant was appointed to the Senior position; [he evidence before the tribunal is that the making of these calculations at the time in question was normal practice and there was nothing inappropriate or untoward about Mr Campbell carrying out this exercise, this assertion is simply speculation on the part of the Claimant and has n0 basis.

v. At the Senior Management Team meeting on 12 April 2010 it was noted under finance that “Maternity pay will soon be due but this will leave a gap in resource.” GC was asked about gap in resource. He stated that the, post holder being off regardless of what the post was, will have an impact on HR and finance. No matter what the post is we would have to put a business
case together and there was a concern about available cover.
The business case was reviewed but there was no guarantee that it would be approved.

vi. It seems plain from the Claimant’s evidence that most of
pregnancy specific comments allegedly made by Ms Simpson were made after the 12 April - indicating a greater awareness of the Claimant’s pregnancy and a more negative view of same
after that date; the remarks as alleged are denied.

vii. Contrary to the impression given by Mollie Simpson in her
evidence regarding the casework team meeting on 12th April
namely “it may have been an informal meeting after SMT”, it is now apparent that this meeting was scheduled to follow the
SMT meeting on the 12 April. (See legal team casework diary entry for 12th April 2010 obtained by the Claimant attached
hereto, a discoverable document which had not previously been provided); the Respondents evidence was that there were no
minutes of any team meeting on that date. Whether it was a
formal or informal team meeting is irrelevant. The diary entry that has now been produced does not show a team meeting
scheduled to follow the SMT meeting. The entry is a recurring entry scheduled for 10 and the SMT was schedule from 9.30 to 11.30. Ms Simpson didn’t give any evidence as to what or
wasn’t included in the diary. –

viii. At the short-listing meeting Mollie Simpson, Gerry Campbell and Robert Magee queried the Claimant’s experience using
information and knowledge that was not contained in or
inferable from the Claimant’s application to determine that she had not met the criterion; that is not the ease at all. These
people and Ms Tennant made an assessment of the claims made by the Claimant and none of them were convinced she had met the criteria.

ix. ix. Following the SMT meeting the Claimant’s ‘acting-up’
position was terminated, by letter dated the 26th April; the
Respondent give evidence as to the reasons for this. This is an innocent explanation.

b. Comments:

i. The Claimant corroborated by Catherine Quigley and Ceardh
Morgan gave evidence that at the casework team meeting on
12th April 2010 following the SMT meeting Mollie Simpson
told the Claimant that her maternity was a burden on the
budget;

ii. Mollie Simpson stated in her grievance interview that ‘There was a concern as to whether or not we would be allowed cover for her maternity leave. I said there was a strain on the budget to cover for her; it was not directed at her “; the concern related to whether the sponsoring body would allow for cover.

iii. The Claimant alleged that the finance officer, Katrina McLogan had cryptically referenced a document in which a senior officer was costing out what an employee would cost in two scenarios and indicated her ‘outrage’ at this; it seems that this was a reference to the document referenced at iii above; the Tribunal is reminded that this was hearsay evidence and the Claimant could have called Ms McLogan but made no attempt to do so. Doing the best it could in the circumstances when this evidence was sprung on it the Respondent obtained a statement from Ms McLogan which contradicts the Claimant’s evidence and confirms there was nothing inappropriate about Mr Campbell making these calculations.

iv. iv. It seems plain from the Claimant’s evidence that most of pregnancy-specific comments allegedly made by Ms Simpson were made after the 12 April - indicating a greater awareness of the Claimant’s pregnancy and a more negative view of same after that date; Ms Simpson’s evidence was that she did not have a negative view of the Claimants pregnancy or maternity. The remarks as alleged by the Claimant are strenuously denied.

c. Anomalies in the short-listing process;

i. Mr Campbell left the short-listing meeting before the end and completed his short-listing with Robert Magee and Mollie Simpson; there is an innocent explanation for this and in any event the Claimant’s application had been fully discussed hefbre he left and therefore this fact has no bearing on this case.
ii. Mr Campbell told the Tribunal that before he left the meeting a decision on the Claimant had been finalised subject to legal advice, but his short-listing form indicates that she w to be shortlisted; No it doesn’t. Mr Campbell explained the markings on his short listing form
iii. Mollie Simpson, Robert Magee and Gerry Campbell queried the Claimant’s experience using information and knowledge that was not contained in or inferable from the Claimant’s application to determine that she had not met the criterion this appears to breach the procedure identified above; These people and Ms Tennant’s evidence as that the panel made an assessment of the claims made by the Claimant and none of them were convinced she had met the criteria,
iv. The panel or members thereof applied a more specific definition of supervision to the Claimant’s application involving a formal role, one to one supervision and appraisals — this was not documented anywhere and it is highly questionable

if it was applied to other candidates whose application form ‘evidence’ of supervision does not appear to demonstrate such experience (e.g. Bundle 3c candidate 01); the panel made an assessment of her claims, which were quite simply OTT and they could not ignore the fact that she had failed Demonstrate that she meet the criterion.
v. In response to a query from Alex Tennant that it seemed crazy or mad that the Claimant could be reserve candidate for the Head of Casework yet not be shortlisted for Senior Casework Office, Mr Magee left the meeting to get the Head of Department recruitment file to clarify that the Claimant had not been informed in writing that she was the reserve candidate. Bizarrely Mr Campbell was present and had informed the Claimant orally of this fact;
vi. The Claimant gave evidence that Mr Magee had previously stressed to her that short-listing had to be done on the information on the form alone;
vii. An arbitrary view that the work or aspects of the work of a barrister cannot equate with supervisory work was adopted excluding all barrister experience. An ‘independent’ opinion was obtained from Mr Magee’s wife’s firm to the same effect. (See above) It now seems that this was communicated individually to panel members contrary to the pleaded case. There was no contradictory case pleaded. The alternate version only emerged when the Claimant gave evidence of her conversations with Alex Tennant during her examination in chief.

d. Evidential inconsistencies:

i. The notice of appearance does not address or refute the
Claimant’s alleged experience in the period September 2008 to
July 2009; It is clear that the Respondent never accepted the
Claimant’s claim in respect of this period.
ii. The Commissioner failed to attend the Tribunal to explain the anomaly at page 2 of the Claimant’s typed grievance interview which inexplicably inserts words indicating that the experience should be from September 2009, not 2008. Notwithstanding, the grievance decision and the defence contained in the notice of appearance is premised upon this discrepancy and the Claimant side was unable to test this issue in cross examination as the Commissioner failed to give evidence to the Tribunal; As I have stated above the nature and extent of the investigation into her Grievance was never made art of her case.
iii. Mr Robert Magee in his letter of 30^th April 2010 to the Claimant (3p) advised her that the panel apparently recognised that she did gain supervisory experience from joining in September 2008 but that it was allegedly minimal and on a very infrequent basis; This is not what he was saying and he did not accept this when giving his evidence.

iv. In replies to a notice for further and better particulars the Respondent stated as follows:

“The individual panel members were not convinced that the Claimant had met criterion 4. It was then suggested that the panel should accept what she had said on her application without questioning it, thereby accepting she did meet essential criterion 4. It was agreed by all members of the panel that a legal opinion should be so tight. As result of the advice obtained Mr Magee reported to the panel that the solicitors view was also that the role of Junior Counsel was not a supervisory one and the panel could not just accept the Claimant’s assertions without question, if they were in doubt but that it was a matter of assessment for the panel to decide if the Claimant met this particular criterion, In the end the panel concluded that she didn‘t meet the criterion and couldn’t be short-listed. “ [Sentence 2 is underlined for easy reference as it is referenced below]

1. she was not happy with what had gone on in the room; this was not Ms Tennant’s evidence.
2. the Claimant as a lawyer would be allowed to see the documentation;
3. Mr Magee had left the room;
4. there had been discussion about supervision;
5. herself and Megan had been of the opinion that the Claimant should be shortlisted on the material she had on
the form: this was not Ms Tennant’s evidence
6. she had questioned the appropriateness of obtaining a legal opinion but the Chair (Mollie Simpson) and Mr Magee had assured her it was appropriate and she acquiesced;
7. she had queried how the Claimant could be shortlisted for
Head of Casework and not Senior Casework Officer and
Mr Magee had gone to get a file and informed her that the
Claimant had not been informed she was reserve
candidate;
8. she questioned whether the criteria was flawed given the supervision requirement; this was not her evidence
9. she was individually (MS was also present and informed both of them at same time) informed by Mr Magee that the Claimant had not been shortlisted based on the advice obtained. The advice had not been brought back to the panel collectively
(The most significant evidence has been underlined.)

v. The Claimant produced notes of the more recent conversation with Ms Tennant;

vi. The Respondent’s defence substantially changed following the Claimant giving this evidence. It seems potentially as a result of the Claimant giving this evidence the Respondent’s case as presented at tribunal was inconsistent with the pleaded case as follows: the Respondent does not accept this at all

1. No member of the panel giving evidence accepted that a panel member or members had made the suggestion at sentence 2 highlighted above; this was riot put to any witness except AT. In any event as Al did not share this with any of the other panel members how could they know about it?
2. Alex Tennant produced a statement made in 2010. This statement had not been previously disclosed and contradicted the pleaded case There was no obligation to produce this statement and it does not contradict the pleaded case.
3. Ms Tennant’s evidence both in her statement and her evidence under cross examination contrasted significantly with the case as pleaded and set out above
— but additionally was not consistent with the Claimant’s evidence of her communications with Ms Tennant. In particular:

a. it was suggested (on behalf of Ms Tennant) that Ms Tennant never mentioned Megan in the conversation with the Claimant. However that contention was seemingly discarded when the Claimant produced the document of her notes of the second conversation which referenced Megan;

b. Ms Tennant indicated that she was informed during the short-listing meeting that it was appropriate to ‘probe’ the information set out in the application, and obtain a legal opinion, and it seems these suggestions were made by Ms Simpson and Mr Magee. (The Respondent strongly contended Ms Tennant had not used this work but the Tribunal accepted that she had used the word.) Mr Campbell corroborated this by indicating that they had to go ‘beneath the surface’. stated It is this probing that gives rise to concerns as detailed above;

c. Ms Tennant suggested that there was a collective consensus that the Claimant did not meet the criteria and refused to confirm both:
1. (a) the Claimant’s evidence that she and Megan thought the Claimant should be

short-listed and tested at interview on
supervision; and,

2. (b) that she or anyone else had made the suggestion pleaded in the second
sentence of the second page of is as set out above; The Tribunal had the benefit of Ms Tennant’s evidence and I
respectfully suggest this is more reliable that the Claimant’s version of what she claims she told her.

4. Contrary to the pleading the Respondent witnesses
indicated that legal advice was not brought back to the panel with the panel then reaching a decision based
thereon, It was never pleaded that the panel reconvened to hear the legal advice. In their oral evidence the
Respondent witnesses explained that a final decision not to short-list was reached subject to legal advice; and, that legal advice was obtained and panel members
informed the following day;

5. No reference was made by Gerry Campbell in his
grievance interview to the decision taken to obtain a
legal opinion whether by agreement or at all. Rather he comments “we said we would park it in terms of the
banisters experience”. (2n) These are only notes and again I would say that the Tribunal heard Mr
Campbell’s evidence and should conic to its
conclusions based on the sworn evidence.

6. Contrary to the pleadings the Respondent witnesses
gave evidence that legal advice was obtained not only on the bar issue but also on whether the panel could go behind the information on the application and have
regard to extraneous material. This is neither an
accurate account ol’ the Respondent’s pleaded case or the evidence of its witnesses. This suggestion was never made prior to the hearing. Moreover there was no
mention of this in the grievance investigation. Notably in re-examination Gerry Campbell stated that legal
advice was only obtained on the bar issue; This was
nothing more than a witness getting con 1usd under the Pressure of giving evidence, I respectfully suggest the Tribunal should discount this.

September 2010) if the interaction had not taken place. In reexamination the Claimant confirmed that the conversation had been between her and Caitriona only; and, that she had no other source for this information which led to the information being uncovered following a specific discovery request. All of this gives evidential weight and cogency to the Claimant’s evidence that Ms McLogan was exercised (‘outraged’) about the propriety of the comparative exercise, i.e. comparing cost with a pregnant senior casework officer; I have already commented on this above.

vii. The probing and scrutiny given to the Claimant’s previous experience of supervision in terms of the nature of the supervision utilised extraneous material, involved inferences which were not applied to other candidates (in terms of the ‘shared understanding’ of one on ones, appraisals etc) and rather than being discarded was determinative. The approach was diametrically contrary to the Respondent’s procedure as set out above;

1. it is clear that there was uncertainty over the ‘cover’ that would be permitted by OFMDFM for maternity leave and Ms Simpson was worried about that. It was foreseeable that if the Claimant was appointed to the position of Senior Casework Officer maternity cover would not be granted. This is not the case. Moreover if the Claimant was appointed to Senior Casework Officer no one would be permanently in place in the Caseworker or Senior Caseworker roles come June 2010— which would probably have meant that neither position would have been occupied upon commencement of the Claimant’s maternity leave nor permanent appointment until say September at the earliest;
2. Mr Campbell’s evidence on the cost of the maternity (i.e. that it would cost circa £2700 in maternity pay) was clearly an under-representation and mis-representation failing to take into account other clearly relevant factors such as salary differential in obtaining cover and pension considerations. Moreover it appears that the employer pension contribution had been enhanced from the 1 April 2010 from 17.5% to 20%. The claimant refers to the attached email from Robert Magee not received by her until her return to work this week and

which ought to have been furnished by the Respondent
on discovery;
3. The idea that Mr Campbell and senior management
were not harbouring financial concerns at that time sits
uneasily with the documentation in the bundle at section
6 (6A). If there were no real concerns, why did Mr
Campbell carry out his calculations (at 6a) and why was
Ms McLogan so exercised about the calculations? Mr
Campbell and Ms McLogan have explained this anti Ms
McLogan does not accept that she expressed any
outrage. It is submitted that this ‘scenario planning’
evidenced a knee-jerk reaction to the Claimant’s
application given the financial concerns and her
pregnancy and impending maternity. It was a
discriminatory knee-jerk reaction;

B DETRIMENTAL TREATMENT

38. The second but related part of the claim concerns two discrete forms of
alleged discrimination:

a. inappropriate comments;
b. an inappropriate requirement.

39. The comments:

a. Ms Simpson stating in early March that it was inconvenient to have a
pregnant senior case work officer;

i. Mr Campbell indicated he had not heard the comment but it
appears he may have been occupied working on a calculator or
computer at the relevant time;

ii. Generally, it is submitted that the Claimant was a credible and
consistent witness whereas Ms Simpson was not a credible
witness; there is no basis for this assertion. Ms Simpson gave
her evidence in a straightforward and creditable manner.

b. Ms Simpson stating in a conversation with Catherine Quigley ‘guess
who is not losing weight’;

i. Ms Quigley gave evidence corroborating the Claimant’s
allegation;

ii. It is submitted that Ms Quigley was a credible and impressive
witness; I respectfully submit that the tribunal has evidence
before it that will allow it to reject this assertion.

c. Ms Simpson stating on the 12 April 2010 that the Claimant’s maternity
was a burden on the budget;

i. Ms Quigley gave evidence corroborating the Claimant’s allegation;
ii. Ms Morgan gave corroborating evidence which was not challenged or refuted in cross examination. Indeed the Respondent elected not to cross examine this witness; Ms Morgan’s evidence on this was vague in the extreme and I respectfully suggest that it does not assist the Tribunal either way. She stated that Mrs Simpson had made a remark about the burden on the budget, She did not specify what was said or any way elaborated on what she understood it to mean. Mr Simpson accepted there was a comment. She said she explained to the claimant that there was a concern as to whether or not NICCY would be allowed cover for her maternity leave. She also said there was a strain on the budget to cover for her. This was al statement of fact and was not directed at the claimant. Ms Simpson denies that there were any adverse remarks made to the claimant about her maternity being a staffing concern and a burden on the budget.
iii. Ms Simpson in the grievance interview stated: “There was a
concern as to whether or not we would be allowed cover for
her maternity leave. 1 said there was a strain on the budget to
cover for her, it was not directed at her”.
iv. It appears that Ms Simpson’s evidence on whether there was a
meeting or scheduled casework meeting on that date was
seriously flawed given the new documentation;
(It is open to the Tribunal to find for the Claimant on this point particularly given the failure to refute Ms Morgan’s corroborative evidence. Indeed it is difficult to see how the Tribunal can fail to find for the Claimant on this point. Moreover the point is central to much of the Claimant’s case.)

d. In or about 20th April the Claimant alleged Ms Simpson made a comment about the Claimant’s fingers being ‘fatter’ than her fingers;

i. In refuting this Ms Simpson said the Claimant had worn a black engagement ring but the Claimant has no such ring; The Claimant’s evidence is respect of wearing a ring or not during her pregnancy was to say the least unconvincing. The Claimant’s evidence is respect of wearing a ring or not during her pregnancy was to say the east unconvincing. I brought up the issue in relation to an engagement ring and said that in FK evidence, she stated that she never wore one and had to remove it but always kept on your wedding ring. FK was asked when she took off her engagement ring? FK stated that it was shortly after MS started working for NICCY. I then stated that MS recalls trying on your ring as she found it very different because it had a black stone. FK said that she remembered this and it is possible because she has two rings.

e. In the period 5^th to 7^th May the Claimant alleged that Ms Simpson made a number of inappropriate comments— in summary that that she

was going to pop soon and that the Claimant could not go off too early as there was to much work to be done — that she [Ms Simpson] was going to be left in the lurch — and that she [Ms Simpson] was concerned the Claimant maternity leave would leave the department under pressure and she would have to phone the Claimant when she was on maternity leave;

i. The Claimant made contemporaneous notes providing cogent evidence of the veracity of these allegations; these notes are clearly not contemporaneous. They are clearly self serving statements created for the purpose of instructing her solicitor. That is obvious from the name under which the document was saved.
ii. It was common-case that there was a backlog of work which needed to be completed before the Claimant went on maternity leave which involved the Claimant in-putting information onto computer;
iii. Whilst Ms Simpson sought to give the impression that by the start of May the in-putting work was all but complete, a case review meeting minute of 11 May indicates that the backlog was not complete and requiring two days work;
iv. Ms Quigley corroborated the allegation that Ms Simpson had commented about phoning the Claimant when in labour/on maternity leave;

f. No grievance decision was reached on allegations as referenced in the originating application, letters h and j. This is not the case as it is obvious that the Claimant’s grievance was not upheld in any respect.

40. The requirement:

a. The Claimant alleges that Mr Magee told the Claimant that she was required to obtain permission before she could attend external meetings;
b. The Claimant referenced case review minutes indicating her seeking permission for same (6d);
c. Mr Magee was unable to provide an unequivocal denial of this allegation;
d. Despite the Respondent’s solicitor suggesting to the Claimant that Ms Simpson would say that the Claimant had never asked for permission to attend external events, Ms Simpson did not give oral evidence on the issue; Ms Simpson evidence was not to this effect.
e. Consequently it is submitted that on balance the Claimant’s evidence is substantially more compelling.

C UNLAWFUL DEDUCTION OF WAGES

41. In relation to the alleged premature termination of acting up responsibility:

a. The Claimant gave evidence that Mr Campbell had informed her that she would remain Acting Senior Casework Officer until the position was filled; there was no such assurance or agreement. The evidence was that a 3 month appointment was renewed on a month to month basis verbally.
b. By letter of 26th April the Claimant was informed that she would stand down on the 14 May 2010;
c. The Claimant alleges that this amounted to a breach of contract and unlawful deduction of wages;

42. It is submitted that there is a breach of an agreement for the purposes of Article 45 of the Employment Rights (Northern Ireland) Order 1996.

43. The Claimant’s loss has been set out in the schedule of loss.

CONCLUSION

44. It is submitted that there is a prima facie case that the Claimant was not short- listed at least in part on the grounds of her pregnancy.

45. Supervision simply involves directing a person to do work and observing that it is done. One can obtain experience of such supervision in multifarious roles, situations and scenarios.

46. Assuming the Claimant had 9 months supervision after Ethne Ryan went on leave in July 2009; she only had to find experience that topped up the 9 month period, i.e. experience that was broadly equivalent to suffice for the purposes of short-listing. This is based on the false premise that she had 9 months supervision. She didn’t, she only had 6.

47. It is submitted that ordinarily a broad approach is adopted in short-listing to promote equality of opportunity and avoid discounting strong candidates on erroneous technicalities. Such an approach amounts to good practice and accords with equality of opportunity. The Respondent does not accept that ordinarily a broad approach is adopted in short listing. It is a fundamental principle that only those who demonstrate that they’ meet the criteria should he shortlisted.

48. It is submitted that the information on the form was sufficient to demonstrate the required experience. If the panel was doubtful about this issue, the appropriate way to address the issue was at interview and in accordance with the procedure as discussed above, this would not have been appropriate and could have been challenged by other candidates. The evidence before the Tribunal was that once a candidate got passed the short listing stage any quest ions as to that person eligibility to he shortlisted would not have been appropriate.

49. In this case a broad approach was apparently adopted in relation to other
candidates (e.g. 3c page 8 there was no evidence to this effect before tie
Tribunal) but a very different approach was adopted in relation to the
Claimant. The panel’s ‘shared understanding’ of supervision’ was not applied to other candidates. An arbitrary approach was adopted in relation to the Claimant’s experience. This contrasts starkly with broad approach discussed above and the apparent suggestion (as indicated in the pleaded case sentence 2 highlighted above) by a panel member, i.e. to the effect that the panel should short-list the Claimant subject to satisfying itself at the interview stage that she had met the criteria for the post. This was the original suggestion of AT which was not accepted by the majority on the panel as appropriate. Indeed MS’s evidence was that she even posed the question should we just let her through based on her claims. It was this discussion that led to the taking of legal advice.

50. The decision not to shortlist the Claimant based on her supervision experience is clouded in procedural deviation, anomaly and evidential inconsistency.
Specifically the short-listing must be considered within the context of an
organisation with financial and staffing concerns and a perception that
pregnancy and maternity was a burden on the organisation both from financial and staffing perspectives. None of this is accepted or borne out by the
evidence.

51. Clearly there was a concern over the impact maternity could / would have on staffing and finance. Whether or not such concern on the part of Respondent officers including Ms Simpson and Mr Campbell was overblown and an
overreaction is irrelevant. The concerns seem to have motivated Ms Simpson and Mr Magee along with Mr Campbell to subject the Claimant’s application to much more stringent and rigorous scrutiny than other applicants; and
contrary to the suggestion of Ms Tennant, led them to breach their policy and utilise their own information to probe and unpick the Claimant’s experience.
This is a contention which is riot supported by the evidence.

52. Additionally the comments referenced above add weight to the Claimant’s
belief that pregnancy was potentially germane in the panel’s mind / the minds of panel-members on the 21 April 2010. These allegations were denied by the Respondent’s witnesses.

53. The ‘why’ question must be considered in the light of the points outlined
above under context, comments, anomalies and inconsistencies. It is
respectfully submitted that such consideration cannot but raise a prima facie
case of pregnancy discrimination.

54. What the Respondent pleaded as a version is no longer sustainable. The fact
that the Respondent has presented a number of versions casts doubt on the
veracity of its defence. It did not present a number of versions. The defence is further undermined by the anomalies and inconsistencies identified above.
With the greatest of respect to Counsel repeating this over and over again
doesn t make it true.

55. It appears that a version closer to the truth only emerged when the Claimant gave evidence about her communications with Ms Tennant. The Respondent’s case changed at that point. But the alternate version given by the Respondent’s witnesses at the Tribunal is also fundamentally flawed, particularly in relation to (a) the denial that no member of the panel giving evidence accepted that a panel member or members had made the suggestion at sentence 2; this was never denied. It was always accepted that this suggestion formed part of the discussion and, (b) Mr Campbell’s form indicating that the Claimant had been short-listed when apparently the panel had finalised its view that she would not be short-listed (subject to legal advice) before he left the meeting.(See Harvey on inferences as referenced at paragraph 17 above. This was explained by Mr Campbell and was only a form of notation. It is clear from the evidence that the consensus was that unless legal advice said they had got it wrong she would not be short listed.

56. Consequently a prima facie case has been raised which relies in part upon the Respondent’s inconsistent explanations; there was no inconsistent explanations and it is submitted that the Respondent cannot consequently discharge its legal / evidential burden to refine the prima facie case. The Respondent was able to justify its decision and this was an innocent explanation.

57. In relation to the comments, it is submitted that the Claimant’s evidence and that of her witnesses is to be preferred to that of Ms Simpson. This is not supported by the evidence.

58. In relation to the discriminatory requirement, again, the Claimant’s evidence appears more cogent and compelling than the Respondent’s.

59. Finally it is submitted that there was an unlawful deduction of wages following the premature termination of the Acting up position.

For and on behalf of the Claimant
May 2011

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Keaney v Northern Ireland Commissioner ... [2011] NIIT 01623_10IT (19 August 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/1623_10IT.html Cite as: [2011] NIIT 1623_10IT, [2011] NIIT 01623_10IT

Industrial Tribunals Northern Ireland Decisions